State v. Howard

• Decision Date: 21 September 2018
• Docket Number: NUMBER 2018 KA 0317
• Citation: 258 So.3d 66
• Parties: STATE of Louisiana v. Kentreal Jarbar HOWARD
• Court: Court of Appeal of Louisiana — District of US

258 So.3d 66

STATE of Louisiana

v.Kentreal Jarbar HOWARD

NUMBER 2018 KA 0317

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: SEPTEMBER 21, 2018

Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, Louisiana, Counsel for Appellee, State of Louisiana

Cynthia K. Meyer, New Orleans, Louisiana, Counsel for Defendant/Appellant, Kentreal Jarbar Howard

Kentreal Jarbar Howard, Kinder, Louisiana, Pro Se

BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

GUIDRY, J.

The defendant, Kentreal Jarbar Howard, was charged by bill of information with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A)(1). See also La R.S. 40:964, Schedule II(A)(4). He pled not guilty and, after a trial by jury, was found guilty as charged. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The State filed a habitual offender bill of information, and the defendant pled not guilty to the allegations therein. After a hearing, the defendant was adjudicated a fourth-felony habitual offender. He was sentenced to thirty years imprisonment at hard labor without the benefit of probation or suspension of sentence.¹ He now appeals, filing one counseled and two separate pro se briefs (pro se brief one and pro se brief two). In his counseled brief, the defendant assigns error to the denial of his motion for continuance to appoint a sanity commission, the sufficiency of the evidence, and the habitual offender adjudication. In both of his pro se briefs, he argues that his constitutional rights were violated due to the inability to confront Agent Joseph Renfro. In pro se brief one, the defendant further assigns error to the constitutionality of the search and seizure and other challenges to the admission of evidence. In pro se brief two, he further asserts that the State committed a Brady violation and prosecutorial misconduct.² For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.

STATEMENT OF FACTS

On April 1, 2015, Lieutenant Brelon Yelverton and Sergeant Kyle Bergeron of the Terrebonne Parish Sheriff's Office (TPSO) warrants division were patrolling the area of Carlos Street in an attempt to locate Joseph Howard, who lived in the area. As they approached 317 Carlos Street, Joseph Howard's known address, a gray Dodge Charger was being driven away from the same location. They questioned an individual who was outside in the yard at the time, and the subject indicated that Joseph Howard had just left in the vehicle. The officers pursued the vehicle and followed it as it entered the Family Dollar Store parking lot, located at 7468 Main Street, at approximately 10:15 a.m. After the driver parked the Dodge Charger, the officers exited their marked unit. Lieutenant Yelverton approached the driver's door and asked the driver for his driver's license, as Sergeant Bergeron approached the passenger side of the vehicle.

While the driver did not provide his driver's license, Sergeant Bergeron recognized him as Kentreal Howard (the defendant), who was also identified by other individuals at the scene, and known as "Kenny Boo." The passenger, Noel Durkins, who provided his driver's license or identification card, exited the vehicle as he was being questioned, but suddenly reentered the vehicle. As the passenger door remained open, Durkins leaned in and grabbed a black bag that was partially unzipped out of the passenger compartment of the vehicle. The officers removed Durkins from the vehicle, and as Durkins threw the bag on the ground, the zipper loosened. The bag landed at the back of the vehicle, and Lieutenant Yelverton placed his foot on the bag as he handcuffed Durkins. As Lieutenant Yelverton addressed Durkins, Sergeant Bergeron picked up the bag and placed it on the trunk of the vehicle. Lieutenant Yelverton instructed the defendant to step back and explained to him that he did not need to be concerned, as they had witnessed everything that happened regarding Durkins' actions.

Lieutenant Yelverton continued to restrain Durkins as the officers observed the contents of the bag, which consisted of several clear baggies that contained rock-like and white powdery substances.³ As Sergeant Bergeron informed the defendant that he was going to be detained, the defendant quickly grabbed the bag from the trunk and took flight. Some of the contents fell out of the bag, and Sergeant Bergeron pursued the defendant on foot as he ran behind the Family Dollar Store. Lieutenant Yelverton remained with Durkins and the evidence that had fallen on the ground.⁴

SUFFICIENCY OF THE EVIDENCE

In counseled assignment of error number two, the defendant argues that the evidence is insufficient to support the verdict of possession with intent to distribute cocaine. He notes that the evidence shows that Durkins, the passenger, had the black bag of cocaine in his possession and threw it on the ground during police questioning. The defendant further notes that there was eyewitness testimony indicating that the police were being aggressive with the defendant and claims that he knocked the black bag off of the trunk of the car in an act of desperation, claiming that the video does not support police testimony that he grabbed the bag and ran. He argues that the evidence presented by the State failed to refute the possibility that the defendant swatted the bag off of the car in an attempt to destroy the evidence. The defendant argues that a review of the record as a whole indicates that the State failed to prove beyond a reasonable doubt that he had the specific intent to possess with intent to distribute cocaine in this case.

When issues are raised on appeal contesting the sufficiency of the evidence and alleging 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, 43, 101 S.Ct. 970, 972, 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 proven beyond a reasonable doubt. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that 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 will be granted a new trial, but is not entitled to an acquittal. See State v. Hearold, 603 So.2d 731, 734 (La. 1992).

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 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. See La. C.Cr.P. art. 821(B) ; State v. Ordodi, 06-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. State v. Wright, 98-0601, p. 2 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 00-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987).

To support a conviction for possession with intent to distribute, the State had to prove beyond a reasonable doubt that the defendant: 1) possessed the controlled dangerous substance; and 2) had an intent to distribute the controlled dangerous substance. La. R.S. 40:967(A)(1) ; State v. Young, 99-1264, p. 10 (La. App. 1st Cir. 3/31/00), 764 So.2d 998, 1006. The State is not required to show actual possession of the narcotics by a defendant in order to convict; constructive possession is sufficient. A person is considered to be in constructive possession of a controlled dangerous substance if it is subject to his dominion and control, regardless of whether or not it is in his physical possession. Also, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. However, the mere presence in the area where narcotics are discovered or mere association with the person who controls the drug or the area where it is located is insufficient to support a finding of constructive possession. State v. Smith, 03-0917, p. 6 (La. App. 1st Cir. 12/31/03), 868 So.2d 794, 799. Factors considered in determining whether or not a defendant exercised dominion and control over a drug include: a defendant's knowledge that illegal drugs are in the area; the defendant's relationship with any person found to be in actual possession of the...