State v. Hughes

• Decision Date: 21 August 1991
• Docket Number: No. 22463-KA,22463-KA
• Citation: 587 So.2d 31
• Parties: STATE of Louisiana, Appellee, v. Jimmie HUGHES, a/k/a Jimmi C. Hughes, a/k/a Jimmie C. Hughes Lexing, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 31

587 So.2d 31

STATE of Louisiana, Appellee, v. Jimmie HUGHES, a/k/a Jimmi C. Hughes, a/k/a Jimmie C. Hughes Lexing, Appellant.

No. 22463-KA.

Court of Appeal of Louisiana Second Circuit.

Aug. 21, 1991.

Writ Denied Jan. 10, 1992.

Raymond Cannon, Tallulah, for appellant.

Linda Fowler, and Kathleen Petersen, Asst. Attys. Gen., Baton Rouge, for appellee.

Before NORRIS, LINDSAY and HIGHTOWER, JJ.

NORRIS, Judge.

The defendant and his wife, Jimmie and Elene Hughes, were jointly charged by bill of information with possession of marijuana with the intent to distribute, La.R.S. 40:966 A(1). They were tried before a 12-member jury. Jimmie Hughes was found guilty of attempted possession of marijuana with the intent to distribute; Elene was found guilty of simple possession. Elene drew a suspended sentence which is not contested in this appeal. The trial court sentenced Jimmie Hughes to 12 years at hard labor and a $2,500 fine plus costs (or one year at hard labor in default). Hughes appealed and later obtained an extension of return date or perhaps an out of time appeal. He perfected the instant appeal, advancing several arguments through his retained trial counsel; later, this court granted his motion to change counsel, and newly appointed appeal counsel advanced several arguments; finally, Hughes filed a pro se brief reiterating various arguments and urging ineffective assistance of counsel. For the reasons expressed, we affirm Jimmie Hughes's conviction but amend the sentence to reflect credit for time served and to strike the imposition of default time upon the indigent defendant.

Facts

The instant drug "bust" was the result of an investigation conducted jointly by the Louisiana State Police and the Madison Parish Sheriff Office. Trooper French, who supervised the investigation, testified that he had received numerous complaints about drug sales at the Hughes house on Pecan Street and at their former house (now burned down) on Railroad Street, both in Tallulah. Sergeant Cannon mentioned that officers were using a reliable confidential informant (at the preliminary examination it transpired that this RCI had actually made a "reliability buy" from Jimmie Hughes at the Railroad Street location about a week before the arrest). On the basis of the complaints and the official surveillance, Trooper French obtained search warrants for both locations. Before executing these on July 29, 1988, he continued his surveillance.

Troopers French and Fragala saw Jimmie Hughes come out of the Pecan Street house, get in the 1985 Olds Cutlass parked behind the house and start driving toward Railroad Street. At the first intersection, however, Hughes stopped and signaled to a man in a green pickup truck by holding up a white, folded-up envelope and waving it at him; Hughes then drove on to Railroad Street.

At 3:30 that afternoon separate groups of officers moved on the two locations to execute the warrants. Trooper French and Deputy Baker entered the back door of the Pecan Street house and found Jimmie Hughes walking out of the bedroom immediately to their right. They Mirandized him, secured the house and then searched. Lying on the flat bed in the bedroom from which Jimmie had just emerged was a ziplock bag containing suspected marijuana; the officers seized this and arrested him. Also in the bedroom they found several paper bags containing what appeared to be marijuana or its residue; scissors, packs of cigarette paper, white envelopes and postal scales; a 10-channel scanner tuned to Tallulah City Police frequency and a digital paging system; and an ice chest containing 12 sealed, rolled-up envelopes of suspected marijuana similar to the one Hughes had flashed at the other motorist earlier in the day. In another bedroom officers found a loaded .22 pistol; in the living room a partially-smoked marijuana cigarette; and in the kitchen an ice chest containing three white, rolled-up envelopes of suspected marijuana. The total weight of the suspected marijuana seized was 3/4 lb. The officers found no drugs on Jimmie Hughes's person but seized over $1,300 cash from his wallet and pockets. Elene Hughes, whom Dep. Baker had found in the kitchen, was also arrested. She had no drugs on her person and was carrying only $14 cash. Apparently during the search officers seized the 1985 Cutlass; it was registered in Elene Hughes's name.

Meanwhile, Sgts. Cannon and Fragala had gone to the Railroad Street lot. They were assisted by Dep. Welch and Mr. Cox of the Madison Parish D.A.'s office. By the remains of the house they saw a domino table occupied by several men. One of these, Stanley Gaines, fled the scene carrying a brown paper sack; Sgt. Cannon eventually ran him down. The sack contained 13 white, rolled-up envelopes of suspected marijuana. He was returned to the lot, where the four other suspects were already in custody. At the scene the officers recovered two suspected marijuana "joints" and loose marijuana, rolling paper and a handgun. The officers carried the suspects to the Madison Parish jail and then Sgts. Cannon and Fragala went to Pecan Street to assist Trooper French.

Sgt. Fragala testified that when he reached the house he found Jimmie Hughes sitting handcuffed on the back porch. With his understanding that Hughes had already been Mirandized, Sgt. Fragala struck up a conversation. Hughes said he was "more or less providing a public service by employing these individuals that were selling drugs at the Railroad Street address because * * * the economy was depressed." Hughes felt he was giving them a job or "something to keep them out of trouble."

Sgt. Cannon testified that all suspects were taken to the Madison Parish jail and booked in the small courtroom upstairs. He spoke to Hughes there; Hughes told him the reason he was selling marijuana was that he could not find other work. He got the younger men on Railroad Street involved so they would have something to do.

Procedural background

The searches and arrests occurred on July 29, 1988 (not 1987 as Hughes has stated in brief). Two weeks later, on August 10, the Sixth Judicial District Attorney, James David Caldwell, moved to recuse himself from the prosecution, citing the need to avoid "any inference of prejudice in that he has served as legal counsel for [Jimmie Hughes] on royalty interests of record, song-writing, and publishing rights in the music industry, and has produced a record for the accused with song-writing royalties." After a hearing on August 18 the trial court granted the motion and appointed the Attorney General's office to prosecute the case. Both at this hearing and the preliminary examination the court noted that there were several codefendants and advised Hughes of the risk of conflict of interest in having four defendants represented by the same retained counsel, Mr. Samuel Thomas. Mr. Thomas stated that he perceived no conflict and Jimmie Hughes said he understood the situation.

On October 28, 1988 Hughes filed a motion to quash the indictment on grounds that "the District Attorney filed a Motion to Recuse himself after his office had participated in the investigation and arrest." At a hearing on the motion in January 1989, Hughes argued in effect that the D.A.'s involvement in the investigation and arrest of a suspect whom he knew invalidated the charge. The trial court denied the motion, noting that just because the D.A. knew the defendant was no reason to deny the state its chance to investigate.

Later in January 1989, the trial court held a hearing on Jimmie Hughes's motion to release the 1985 Cutlass. The state conceded that the hearing for civil forfeiture was not scheduled until after trial, but argued that the car was mentioned in the search warrant and seized incident to an arrest. The trial court denied the motion.

At trial in March 1989, law enforcement officers testified to the facts of the searches and arrests as outlined above. A forensic scientist verified that the green vegetable matter seized from the house and lot were marijuana; an expert in latent fingerprints testified that Jimmie Hughes's palm print was found on the owner's manual of the radio scanner, but no other match was found in the various latents taken at the house.

Also testifying for the state was Stanley Gaines, the man who had attempted to flee from the lot when the officers arrived. For his part in the offense Gaines pled guilty to possession of marijuana with the intent to distribute; he testified that he drew three years, suspended, with the condition that he serve one year. Gaines testified that he was picking up packages of marijuana from Hughes in the morning and carrying them to the lot on Railroad Street for sale; he was selling when the arrest occurred. Hughes gave him some walkie talkies to use if he saw the law coming; he also gave Gaines a handgun to "warn off" anyone who might disrupt business. Gaines also testified that Hughes was paying him about $25 a day, plus expenses, for his services; he did not know if Hughes was selling from the house on Pecan Street. Gaines insisted there was no "deal" and he received no special treatment for testifying against Hughes; he was only to tell the truth.

The only defense witness was codefendant Elene Hughes. She testified that her husband is a singer and songwriter who has cut 88 records; he uses a large band whose members sometimes stay in the Pecan Street house; he has recorded for James Caldwell; because of Jimmie's schedule Elene did not see much of him. On the day of the arrest, a man named Main Robinson had come to visit and was standing by Jimmie's open bedroom window; when the officers appeared, Robinson disappeared. Elene denied any knowledge that Jimmie was running a drug operation from the house; in fact, she had never seen drugs there until that day. She testified that after doing a gig, Jimmie would be paid around $1,000, usually in cash, which would explain why he might be carrying a lot...