State v. Holmes

• Decision Date: 08 November 2000
• Docket Number: No. 99-KA-0898.,99-KA-0898.
• Citation: 791 So.2d 669
• Parties: STATE of Louisiana v. Darrell HOLMES, Barry Bowie & William Bailey.
• Court: Court of Appeal of Louisiana — District of US

791 So.2d 669

STATE of Louisiana v. Darrell HOLMES, Barry Bowie & William Bailey.

No. 99-KA-0898.

Court of Appeal of Louisiana, Fourth Circuit.

November 8, 2000.

Opinions on Grant of Rehearing En Banc June 27, 2001.

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Harry F. Connick, District Attorney, Leslie P. Tullier, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff—Appellee.

Yvonne Chalker, and William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant-Appellant, Barry Bowie & William Bailey.

William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant-Appellant, Barry Bowie (On Rehearing).

James H. Looney, Executive Director, Louisiana Appellate Project, Covington, LA, Counsel for Defendant-Appellant, Darrell Holmes.

Court composed of Judge WILLIAM H. BYRNES, III, Judge STEVEN R. PLOTKIN, Judge MAX N. TOBIAS, Jr.

BYRNES, Judge.

On January 23, 1998, the defendants, Darrell Holmes, Barry Bowie, and William Bailey, were charged by bill of information with possession of cocaine with intent to distribute, a violation of La. R.S. 40:967. Bailey was represented by Benny George. Bowie and Holmes were represented by Keith Lewis, OIDP. They were arraigned January 27, 1998 and pled not guilty. On February 27, 1998, the court found probable cause and denied a motion to suppress evidence. On May 12, 1998, a twelve member jury found the defendants guilty as charged.

Bailey was sentenced on June 1, 1998, to five years at hard labor.

The State filed a multiple bill as to Holmes. Holmes' motion for new trial and motion for post-verdict judgment of acquittal were denied November 13, 1998. He was sentenced that day to thirty years at hard labor without benefit of parole, probation, or suspension of sentence. He filed a motion to reconsider sentence which was denied. The court then found him to be a fourth offender, vacated its original sentence and re-sentenced the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

On January 5, 1999, Bowie was sentenced to five years at hard labor.

FACTS:

Officer William Gibson received an anonymous tip that crack cocaine was being distributed from 1927 Dumaine. On November 17, 1997, he staked out the address and saw one subject passing money through a window and another one acting as a lookout at the gate. The man at the window was given something by someone with a light skinned hand.¹ Gibson stopped the two men. The lookout alerted the other man who put something in his mouth. Gibson threw that man to the ground, and the man coughed up crack cocaine.

The next day, Gibson applied for a search warrant for the house. He executed it November 21, 1997. Officers broke down the door. On a table was a plastic bag containing thirty-three pieces of cocaine, cash, several cell phones and pagers. Bowie was standing to Gibson's right as he entered. Bailey was seated at the window where the transaction had taken place, and Holmes was seated on a weight bench to Bailey's right. The contraband was within an arm's reach of Bowie and Holmes. A juvenile was also present holding a two year old baby later found to be the child of Holmes. The officers ordered the men to the floor. Bailey tossed a plastic bag under the table, and it was found to contain another thirty-three pieces of cocaine. Bowie was found in possession of $600.00 and a pager. Bailey had $242.00. The police confiscated a telephone bill, a social security card, a municipal court subpoena and a jury card in the name of Holmes. On cross, Gibson explained that he was not the first in the door, and that the defendants had already been handcuffed and were on the floor. He learned the defendants' positions from the officers assisting him.

Sheriff Mark Mornay said he helped execute the warrant. He confirmed Gibson's story as did Officers Arthur Powell and Joe Lainez.

Bowie said he received the money from his father and was going to the address to rent a room. Holmes had told him about the availability of a room, but he had never been there before. He said he possessed no drugs.

Holmes said he was the manager and caretaker of 1927 Dumaine. He admitted to possession of stolen property, theft, and forgery. He said he did not believe in drugs, and possessed none when he was arrested. He said Bailey and Bowie did not sell drugs, and that the policemen were liars.

ERRORS PATENT:

A review of the record for errors patent reveals that Holmes did not waive his right to a twenty-four hour delay between the denial of his motions for new trial and for judgment of acquittal and his sentencing. La.C.Cr.P. art. 873. In State v. Augustine, 555 So.2d 1331 (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, even though the defendant fails to specifically allege this failure as an error on appeal. However, the Fourth Circuit, in State v. Collins, 584 So.2d 356 (La.App. 4 Cir.1991), held that the failure to observe the delay would be deemed harmless error where the defendant did not challenge his sentence on appeal. Therefore, in the present case where no error was raised as to the defendant's sentence, the failure of the trial court to observe the delay period is harmless error.

In addition, La. R.S. 40:967(B)(4)(b) provides that the first five years of a sentence for distribution of cocaine must be served without benefit of parole, probation, or suspension of sentence. Bowie and Bailey were not denied these benefits. However, this court will not correct an error patent favorable to the defendant where not raised by the State or the defense. State v. Fraser, 484 So.2d 122 (La.1986).

Lastly, Holmes and Bowie were both sentenced after their appeals had been granted. However, this court will not dismiss appeals where a sentence is imposed after defendant's motion for appeal is filed and granted. State v. Martin, 483 So.2d 1223 (La.App. 4 Cir.1986).

SUFFICIENCY OF EVIDENCE (BAILEY'S AND BOWIE'S ASSIGNMENTS OF ERROR ONE):

To evaluate whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Scott, 97-0028 (La.App. 4 Cir. 3/18/98), 709 So.2d 339. However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. The reviewing court is not permitted to consider just the evidence most favorable to the prosecution, but it must consider the record as a whole. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. State v. Mussall, 523 So.2d 1305 (La.1988). "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Scott, 709 So.2d at 343 (quoting State v. Smith, 600 So.2d 1319, 1324 (La.1992)).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather it is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

In order to prove possession, the State is not obligated to prove actual possession, rather such conviction may be supported by a showing of constructive possession. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Jackson, 557 So.2d 1034 (La.App. 4 Cir.1990). The defendant's presence in the area where the drug is found, or the mere fact that the defendant knows the person in actual possession, is insufficient to prove constructive possession. Trahan; Jackson. However, a person may be considered to be in constructive possession if the illegal substance is subject to his dominion and control, or if he willfully and knowingly shares with another person in actual possession of a drug the right to control the drug. Trahan, supra. As this court noted in State v. Reaux, 539 So.2d 105, 108 (La.App. 4 Cir. 1989):

In determining whether defendant exercised the requisite dominion and control the jury may consider his knowledge that illegal drugs are in the area, his relationship with one found to be in actual possession, his access to the area where drugs were found, his physical proximity to the drugs and the evidence that the area was frequented by drug users.

In State v. Kingsmill, 514 So.2d 599 (La.App. 4 Cir.1987), cocaine and drug paraphernalia, including a scale, rolling papers, a razor, and numerous plastic bags, were found in an open cardboard box on a seat in a car occupied by the defendant and three other people. This court found sufficient evidence that the occupants of the car exercised dominion and control over the box and...