State v. Hollins

• Decision Date: 31 August 1999
• Docket Number: No. 99-KA-278.,99-KA-278.
• Citation: 742 So.2d 671
• Parties: STATE of Louisiana v. Antoine HOLLINS.
• Court: Court of Appeal of Louisiana — District of US

742 So.2d 671

STATE of Louisiana v. Antoine HOLLINS.

No. 99-KA-278.

Court of Appeal of Louisiana, Fifth Circuit.

August 31, 1999.

Laurie A. White, New Orleans, Louisiana, Attorney for Appellant Antoine Hollins.

Paul D. Connick, Jr., District Attorney, Thomas J. Butler—Counsel of Record on Appeal, Terry M. Boudreaux—Appellate Counsel, Gregory M. Kennedy—Trial Counsel, David M. Wolff—Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, Attorneys for Appellee State of Louisiana.

Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.

CANNELLA, Judge.

Defendant, Antoine Hollins, appeals from his conviction of possession of cocaine with intent to distribute and his enhanced sentence as a third felony offender of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. We affirm, amend the commitment and remand with order.

Defendant was tried and found guilty of one count of possession of cocaine with intent to distribute, a violation of La. R.S. 40:967(A), by a jury of twelve persons on September 30, 1997. On October 2, 1997, defendant filed a motion for new trial which was denied on November 3, 1997. On the same day, the defendant was sentenced to ten years incarceration at hard labor. The State subsequently filed an habitual offender bill of information alleging that he was a third felony offender. On February 12, 1998, an habitual offender hearing was held and defendant was found to be a third felony offender. On March 5, 1998, a sentencing hearing was held at which defendant urged the trial court to deviate from the mandatory minimum sentence in accordance with State v. Dorthey, 623 So.2d 1276 (La.1993). The trial court elected not to deviate from the mandatory minimum sentence and sentenced defendant to life imprisonment at hard labor.¹

On April 2, 1997 at approximately 6:45 p.m., Deputy Mike Crossen and Sergeant Joseph Williams of the Jefferson Parish Sheriffs Office were on patrol in an unmarked police car investigating complaints of individuals selling drugs on the street in the Bunche Village area of Jefferson Parish. While on patrol, the officers noticed defendant riding his bicycle in the 1400 block of South Elm Street. The officers thought that defendant was loitering in that area and decided to question him. When the officers got out of their car, defendant jumped off his bicycle and fled on foot. The officers pursued defendant on foot through the neighborhood onto Wilson Street.

At the same time, Sergeant Ronald Hoefeld and Lieutenant Timmy Miller were conducting a narcotics investigation in the 1400 block of Wilson Street in Bunch Village. Sergeant Hoefeld heard over the police radio that Deputy Crossen was involved in a foot chase in the area. Sergeant Hoefeld and Lieutenant Miller saw the defendant was headed in their direction and they hid behind their car as he approached. When defendant got close to their car, the two officers stood up and ordered him to stop. Defendant immediately lay face down on the ground with his hands under his body.

While defendant was on the ground, the officers noticed that he was pulling at his waist. The officers feared that defendant was trying to pull out a weapon, so they struggled with him to pull his hands behind his back and handcuffed him. The officers lifted him up off the ground and discovered, on the ground where defendant had been, a plastic bag containing what appeared to be nineteen rocks of crack cocaine. Agent Hoefeld picked up the bag and handed it to Deputy Crossen who performed a field test and determined that the bag contained cocaine. After testing the contraband, defendant was placed under arrest.

At trial, the four officers involved in the pursuit and arrest of defendant testified, along with Edgar Dunn. Dunn was qualified as an expert in the field of narcotics testing and identification. He testified that he tested four of the nineteen pieces of rock-like material in the plastic bag that the officers recovered. Dunn testified that the items tested were positive for cocaine. No other witnesses testified.

On appeal, defendant contends that:

1. The trial court erred in failing to grant defendant's motion for a new trial pursuant to C.Cr. P. art. 851(1), as the verdict is contrary to the law and the evidence.

2. The trial court improperly admitted the abandoned contraband into evidence which was obtained pursuant to an unlawful seizure.

3. Defendant was denied his right to effective assistance of counsel, since the trial counsel failed to pursue pre-trial motions to have the trial court determine whether the seized evidence was constitutionally admissible.

4. The trial court erred in giving the jury an erroneous instruction regarding an essential element of the offense charged, which prejudiced defendant as to the verdict.

5. Defendant's Due Process rights under the Fourteenth Amendment to the United States Constitution were violated when the trial court improperly allowed expert opinion testimony regarding the ultimate issue of guilt in contravention of Louisiana Code of Evidence Article 704.

6. Defendant was erroneously adjudged a third offender under La. R.S. 15:529.1.

7. Defendant's sentence of life imprisonment without benefit of parole, probation or suspension of sentence is constitutionally excessive.

8. Defendant further requests review of the entire record for errors patent.

Defendant first argues that the trial court violated his constitutional rights by denying his motion for new trial because his conviction was based on insufficient evidence. Defendant also claims that the ends of justice would be served by granting a new trial, although he may not be entitled to a new trial as a matter of strict legal right. The State responds that the ruling on a motion for new trial is submitted to the sound discretion of the trial court and the trial court in this case did not abuse its discretion because there was sufficient evidence presented to support defendant's conviction.

La.C.Cr.P. art. 851 provides for the granting of a new trial as follows:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.

The court, on motion of the defendant, shall grant a new trial whenever:

(1) The verdict is contrary to the law and the evidence;

(2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;

(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or

(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. State v. Humphrey, 445 So.2d 1155, 1160 (La.1984); State v. Hayden, 97-1070 (La. App. 5th Cir. 2/25/98), 707 So.2d 1360, 1364, writ denied 98-0811(La.9/4/97), 723 So.2d 960. The standard for testing the sufficiency of evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Hayden, 707 So.2d at 1364.

In order to prove guilt by circumstantial evidence, the State must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. This is not separate from the Jackson standard. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, ___ U.S. ___, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Jones, 98-842 (La.App. 5th Cir. 2/10/99), 729 So.2d 57.

Defendant was convicted of possession of cocaine with the intent to distribute, a violation of La.R.S. 40:967(A)(1), which makes it unlawful for any person, knowingly and 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.

The crime of possession with intent to distribute cocaine requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. La. R.S. 40:967(A); State v. Bell, 97-1134 (La. App. 5th Cir. 2/25/98), 709 So.2d 921, 925, writ denied, 98-0792 (La.9/16/98), 721 So.2d 477.

Here, defendant attacks the finding that he had the specific intent to distribute the cocaine. He concedes that the evidence may be sufficient to sustain a conviction for possession of cocaine, but argues that it falls short of sustaining a conviction for possession with intent to distribute cocaine.

Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La.R.S. 14:10(1). The determination of specific criminal intent is a question of fact. State v. Seals, 95-305 (La.11/25/9...