State v. Johnlouis

• Decision Date: 04 November 2009
• Docket Number: No. 09-235.,09-235.
• Citation: State v. Johnlouis, 22 So.3d 1150 (La. App. 2009)
• Parties: STATE of Louisiana v. Alfonzo Jermaine JOHNLOUIS.
• Court: Court of Appeal of Louisiana

22 So.3d 1150

STATE of Louisiana v. Alfonzo Jermaine JOHNLOUIS.

No. 09-235.

Court of Appeal of Louisiana, Third Circuit.

November 4, 2009.

Rehearing Denied December 9, 2009.

J. Phillip Haney, District Attorney, New Iberia, LA, for Appellee, State of Louisiana.

William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Alfonzo Jermaine Johnlouis.

Jeffrey J. Trosclair, Assistant District Attorney Sixteenth Judicial District Court, Franklin, LA, for Appellee, State of Louisiana.

Alfonzo Jermaine, Angola, LA.

Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.

EZELL, Judge.

The Defendant, Alfonzo Jermaine Johnlouis, was charged by bill of information filed on February 22, 2007, with possession of at least 28 but less than 200 grams of cocaine, in violation of La. R.S. 40:967; possession of marijuana, in violation of La.R.S. 40:966; and transactions involving proceeds from drug offenses, in violation of La.R.S. 40:1041. A plea of not guilty was entered on March 7, 2007. On September 17, 2007, the charge of possession of marijuana was severed. Trial by jury commenced on September 18, 2007, and the jury subsequently found the Defendant guilty on the remaining two counts.

A bill of information charging the Defendant as an habitual offender was filed on September 19, 2007. The Defendant was arraigned on January 30, 2008, and denied the allegations. On February 15, 2008, the Defendant was adjudicated a second felony offender and sentenced to fifty years at hard labor and to pay a fine of $75,000.00 on the charge of possession of at least 28 but less than 200 grams of cocaine. On the charge of transactions involving proceeds from drug offenses, he was sentenced to serve ten years at hard labor and to pay a fine of $20,000.00. The sentences and fines were ordered to run concurrently with each other. The trial court also ordered that the sentences run concurrently with a parole violation in docket number 99-1470.

A "Petition for Appeal" was filed on March 12, 2008, and subsequently granted. The Defendant is now before this court asserting three assignments of error. Therein, the Defendant contends there is insufficient evidence to prove he committed the offenses at issue, the trial court erred in denying his motion to suppress, and the sentences imposed are excessive.

FACTS

Police encountered the Defendant and his girlfriend, Semiko Brown, in the parking lot of Wrench Masters, an auto shop that was closed at the time. During a pat down, police found a large sum of cash in the Defendant's pocket. Police subsequently searched the Defendant's car and found 60.4 grams of cocaine under the driver's seat.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are three errors patent.

The bill of information contains an error in the citation for the charge of transactions involving proceeds from drug offenses. The bill of information provides this charge is a violation of La. R.S. 40:1049, instead of La. R.S. 40:1041. However, the erroneous citation of a statute in the charging instrument is harmless error as long as the error did not mislead the defendant to his prejudice. La.Code Crim.P. art. 464. The Defendant does not allege any prejudice because of the erroneous citation. Accordingly, this court finds that error is harmless.

Next, the trial court imposed an illegal sentence. In addition to the terms of imprisonment, the trial court imposed a fine of $75,000.00 on the enhanced sentence for the conviction of possession of cocaine, and a fine of $20,000.00 on the enhanced sentence for the conviction of transactions involving drug proceeds; the trial court ordered the $20,000.00 fine to run concurrently with the $75,000.00 fine.

In State v. Dickerson, 584 So.2d 1140 (La.1991), the supreme court held that the fine and default provisions of his sentence should be deleted:

[Louisiana Revised Statutes] 15:529.1 requires that the sentencing judge vacate the original sentence and resentence the defendant as a multiple offender. In resentencing, the judge must impose a sentence authorized by La.Rev. Stat. 15:529.1. That statute does not authorize the imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment. The trial judge was therefore without authority to impose a fine on resentencing under La.Rev.Stat. 15:529.1.

Accordingly, the fine and default provisions of defendant's sentence are deleted.

In light of the Dickerson case and La. R.S. 15:529.1, the court amends the Defendant's sentences to delete the fine provisions and instructs the trial court to make an entry in the minutes of court to reflect the amendment.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Defendant contends there was insufficient evidence to prove his guilt beyond a reasonable doubt for the offenses of possession of at least 28 but less than 200 grams of cocaine and financial transactions involving proceeds from drug offenses.

In reviewing the sufficiency of the evidence to support a conviction for negligent homicide, an appellate court in Louisiana is controlled by the standard of review adjudged by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),

"[T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Captville, 448 So.2d 676, 678 (La.1984).

State v. Desoto, 07-1804, p. 7 (La.3/17/09), 6 So.3d 141, 146 (alteration in original).

On December 20, 2006, at approximately 11:30 p.m., police officer Kirk Dunn and a trainee drove past Wrench Masters auto repair shop. Dunn saw two cars in the parking lot and a man crouched down by the tire of one of the cars. Since the business closed at approximately 5:00 p.m., Dunn and the trainee returned to the business and initiated contact with the Defendant and his girlfriend, Semiko Brown. When Dunn and the trainee arrived at Wrench Masters, they were approached by Brown. Brown informed Dunn that her car had been repaired, and she and the Defendant were there to pick it up. Her keys were supposed to be on one of the tires.

Dunn verified that Brown owned the car. During that time, the Defendant continued to look for Brown's keys. When Dunn approached the Defendant, the Defendant corroborated Brown's story and said he "brought" her to Wrench Masters. Dunn testified that the Defendant was nervous, stuttering, shaking, and would not make eye contact with him.

The driver's door of the Defendant's car, which the Defendant and Brown had arrived at Wrench Masters in, was open. Dunn testified that when he passed near the car, he smelled a strong odor of burnt marijuana. On direct examination, Dunn testified the Defendant did not respond when asked about the odor. However, on cross-examination, he testified that the Defendant denied having smoked marijuana.

Dunn testified that because the Defendant was nervous and uncooperative, he conducted a pat down of the Defendant. Dunn detected a large bundle in one of the Defendant's pocket. Dunn testified that when asked what the object was, the Defendant refused to answer. Thus, Dunn removed what turned out to be a large wad of money from the Defendant's pocket. Dunn did not know how the Defendant got the money and testified that the Defendant said he was not employed at that time. Dunn admitted he did not include information about the Defendant's employment status in the police report.

Dunn subsequently searched the Defendant's car and found two rocks of crack cocaine under the driver's seat. As a result, the Defendant was arrested for possession of crack cocaine, but Brown was not. Dunn testified that he did not determine who drove the Defendant's car to Wrench Masters. Additionally, he did not see anyone handle the drugs, and he could not say they did not belong to Brown. Semiko Brown testified that she was the Defendant's girlfriend. She then admitted that on November 21, 2006, she had been charged with possession with intent to distribute Lortab.¹

Brown testified that she had the Defendant's car from approximately 10:00 a.m. until 11:18 p.m. on the date in question. She did not know where the Defendant was from 10:00 a.m. until 3:00 p.m. At approximately 10:30 p.m., the Defendant met her, and she drove to Wrench Masters.

Brown testified that she drove the Defendant's car to Wrench Masters to pick up her car, the key to which was supposed to be left on a tire. After she was at the shop for approximately two minutes, the police arrived and asked what she was doing. While she spoke to police, the Defendant looked for the key. She then gave an officer her registration and driver's license. The officer then said he smelled burnt marijuana coming from the Defendant's vehicle.

Brown testified that she never saw the Defendant handle any illegal narcotics while he was with her. She also acknowledged that Dunn did not ask if the drugs he found under the seat of the Defendant's car were hers. Brown testified that the Defendant was in the back of the police car when the drugs were found, and the drugs were found the third time the car was searched. She further testified that police said they would let her go if she wrote a statement.

On cross-examination, Brown was questioned about the drugs as follows:

Q. And, during that questioning, you admitted that you didn't — that wasn't your drugs that were in the car, correct?

A. Can I plead the fifth.

Q. During that questioning, at that time, at the time that I questioned you a week or so ago, you said that wasn't — it wasn't your drugs, correct? At that time?

A. I plead the fifth.

Q. That's not my question. My question is, at...