State v. Holden, No. 45,038-KA (La. App. 1/27/2010)

• Decision Date: 27 January 2010
• Docket Number: No. 45,038-KA.,45,038-KA.
• Parties: STATE OF LOUISIANA, Appellee v. DIVERIOUS C. HOLDEN, Appellant.
• Court: Court of Appeal of Louisiana — District of US

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STATE OF LOUISIANA, Appellee v. DIVERIOUS C. HOLDEN, Appellant.

No. 45,038-KA.

Court of Appeals of Louisiana, Second Circuit.

January 27, 2010.

Application for rehearing may be filed within the delay allowed by Art. 922, La. C.Cr.P.

APPEALED FROM THE EIGHTH JUDICIAL DISTRICT COURT FOR THE PARISH OF WINN, LOUISIANA, TRIAL COURT NO. 41,397, HONORABLE JACQUE D. DERR, JUDGE.

EDWARD KELLY BAUMAN, Louisiana Appellate Project, Counsel for Appellant.

DIVERIOUS C. HOLDEN, RICHARD CHRISTOPHER NEVILS, STEVEN D. CREWS, Assistant District Attorney. District Attorney, Counsel for Appellee.

Before CARAWAY, PEATROSS and DREW, JJ.

DREW, J.

Defendant, Diverious Holden, a trustee incarcerated in Winn Parish, was convicted at jury trial of four felony drug charges, all committed during his incarceration. He received a significant prison term for each crime, though all sentences were ordered to be served concurrently. The trial court ordered that these four concurrent sentences be served consecutively with the sentences he was serving when he breached the trust granted him as a trustee.

This appeal involves his convictions of and sentences for the following crimes:

• Possession of marijuana with intent to distribute, for which he was ultimately ordered to serve 20 years at hard labor;

• Possession of cocaine with intent to distribute, for which he was sentenced to 20 years at hard labor, with the first two years to be served without benefits;

• Possession of Xanax with intent to distribute, for which he was sentenced to serve 10 years at hard labor; and

• Introduction of contraband into a penal institution, for which he received a sentence of five years at hard labor.

He appeals his convictions and sentences. We affirm in all respects.

FACTS

In 2008, Holden was a trustee at the Winn Parish Jail, housed in a cell designated for such apparently reliable inmates. On the morning of May 15, Holden failed to report for his work detail. The infraction resulted in his loss of trustee status and a transfer to lockdown.

Winn Parish Sheriff's Deputy Raymond Whittington, the jail warden, ordered Holden and another inmate out of their cell. Both were ordered to move their belongings into the hall.¹ Holden moved two lockers into the hall, one unlocked and the other locked. A search of the unlocked locker revealed only clothing. After cutting the lock from the other locker, Whittington found therein a sock containing marijuana, as well as individual packets of white powder and a nonprescription pill bottle containing approximately 45 pills. In addition, the locker also contained 69 packs of cigarettes and various legal personal items. Holden denied ownership of the drugs but admitted that the other items belonged to him.

Analysis of the suspected contraband from the locker revealed the items to be marijuana, cocaine, and alprazolam (Xanax). Holden was charged with possession with intent to distribute the three drugs, as well as introduction of contraband into a penal institution.

DISCUSSION

I. Sufficiency of the Evidence

Holden contends the evidence presented was insufficient to sustain the convictions of guilt, in that:

• the testimony of the state's witnesses was not credible;

• the locker containing the drugs did not belong to him;

• the state did not disprove that the drugs belonged to another inmate; and

• the state did not prove that he specifically intended to distribute the drugs.

Not surprisingly, the state disagrees, arguing that sufficient evidence was presented by which the jury could infer that Holden was a principal to the offenses, and that the jury's determination on witness credibility is not subject to review.

Our law on sufficiency of the evidence is well settled.² Likewise, our law is well settled relative to assessing the requisite proof for crimes of alleged possession of drugs with intent to distribute.³

The state was easily able to establish the essential elements of the charged offenses.

Deputy Raymond Whittington, the jail warden at the time of the incident, testified that:

• he learned that Holden and another inmate had not gone to work on May 15, 2008, so he went to their cell, where he found Holden asleep;

• after awakening Holden, Whittington prepared to move Holden to another cell for lockdown;

• Holden moved his two standard-issue jail lockers into the hallway;

• he (Whittington) used bolt cutters to remove the lock, finding the drugs;⁴

• he consulted with Chief Deputy Gregg Davies about his discovery • Chief Davies called in Detective Darrell Winder to investigate the case;

• the lockers were not labeled with names; however, Holden brought the lockers out of the cell himself when told to bring out his belongings;

• the lock he cut off Holden's locker was a "gun lock" that the sheriff's office supplied to the public;

• these locks were not issued to inmates though some inmates had them;

• he first searched Holden's unlocked locker, finding no contraband;

• the sock containing the drugs had markings on it matching socks found in Holden's unlocked locker;

• no key was ever found for the lock; and

• the lockers remained in the hallway outside the cell until he turned the investigation over to Winder.

Chief Deputy Gregg Davies testified that:

• Whittington informed him that Holden had not reported for work;

• he (Davies) told Holden that he would lose his trustee privileges;

• he instructed Whittington to move Holden from the trustee cell;

• shortly thereafter, Whittington arrived at Davies' office, showing him contraband that was confiscated from Holden's locker;

• he (Davies) observed marijuana inside the sock; and

• he contacted Winder to take over the investigation.

Winn Parish Detective Darrell Winder testified that:

• Davies assigned him to investigate the discovery of drugs at the jail;

• he (Winder) identified the evidence seized that day and confirmed that it had been in his possession since it was turned over to him;

• he identified the sock that contained the marijuana, as well as a "Dollar General white pill bottle" containing 49 Xanax tablets, as well as the small packages of cocaine seized from Holden's locker • sixty-nine packages of cigarettes were found inside the locker;

• he took possession of the lock that had been cut from Holden's locker;

• inside the locker containing drugs, he found photos of Holden and his family;

• he took photographs of the items taken from Holden's locker;

• he interviewed Holden, who waived his rights and voluntarily answered questions, admitting ownership of many items in the locker,⁵ but not the drugs;

• Holden initially denied having a key for the locker, but took Winder to the cell to look for it;

• no key to the locker was found;

• the sock containing drugs had an emblem drawn on it that matched socks Holden was wearing as well as other socks found in his other locker;

• Holden indicated a former inmate gave the socks to him;

• he (Winder) submitted the evidence to the crime lab for analysis;⁶

• after analysis, the drugs were secured in the sheriff's evidence room;

• he identified at trial the crime lab certificate reflecting that the substances tested positive for marijuana, cocaine, and alprazolam (Xanax);

• the amount of marijuana recovered was more than someone usually had for personal use;

• the cocaine was individually packaged, inconsistent with personal use;

• the large quantity of pills was also inconsistent with personal usage;

• when asked the significance of all these items being found together in the locker, he testified, "He's got a store. He's selling." • there were approximately six inmates in the cell at the time the drugs were found but he was unsure of how many lockers may have been in the cell;

• he never searched Holden, nor was Holden drug screened, nor did he find any money; and

• another inmate tested positive for marijuana.

Johnny Lowery, another prisoner at the Winn Parish Jail, testified that:

• he was a trustee with Holden on May 15, 2008;

• a few weeks prior to that date, Holden asked Lowery for a lock and key, which Lowery provided him;

• Holden put the lock on his locker;

• Holden locked the locker every morning before leaving and unlocked it upon his return in the evening;

• there were other lockers and locks, but none like what he had given Holden;

• he (Lowery) had obtained the lock from another inmate, who had subsequently been released; and

• he (Lowery) could not use the lock because his locker did not have a latch.

Detective Winder was recalled as the only defense witness, testifying that:

• he had been asked to obtain records detailing what inmates were housed in Holden's cell on the day the drugs were discovered;

• the records were unavailable, but he did recall a few of the inmates in the cell;

• he again testified that he did not search any of the inmates or their lockers, nor did he ever find the key for the lock; and

• no fingerprints were taken from the evidence because it had been handled by Whittington before Winder took possession of the items.

Possession of the Drugs, with Intent to Distribute

The evidence presented by the state was sufficient to convict Holden of the charged offenses. The state was required to prove beyond a reasonable doubt that Holden knowingly or intentionally possessed the contraband and that he did so with the intent to distribute it. With regard to each of the controlled substances, the state was able to show that the substances were found in the locker used by Holden to hold his possessions. When roused from his cell and told to gather his belongings, Holden independently removed the lockers to the hallway, evidencing his dominion over them. While Holden maintained two lockers, only the locker containing the drugs was locked. Several weeks prior to the discovery of the drugs, Holden had obtained a lock for use on the locker containing the contraband. Holden was seen locking the locker when...