State v. Lewis
| Citation | 187 So.3d 24 |
| Decision Date | 03 February 2016 |
| Docket Number | No. 2015–KA–0773.,2015–KA–0773. |
| Parties | STATE of Louisiana v. Zachariah M. LEWIS. |
| Court | Court of Appeal of Louisiana (US) |
187 So.3d 24
STATE of Louisiana
v.
Zachariah M. LEWIS.
No. 2015–KA–0773.
Court of Appeal of Louisiana, Fourth Circuit.
Feb. 3, 2016.
Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS ).
Rosemary Ledet, Judge.
In this criminal appeal, the defendant, Zachariah Lewis, seeks review of his convictions and sentences for possession of cocaine and attempted battery of a police officer. For the reasons that follow, we
affirm his conviction for possession of cocaine, and amend his sentence on that offense to delete the prohibition of parole eligibility and affirm the sentence as amended. We convert Mr. Lewis' appeal from the conviction for attempted battery of a police officer to an application for supervisory writ, grant the writ, and vacate the conviction and sentence.
STATEMENT OF THE CASE
On October 23, 2013, the State filed a bill of information charging Mr. Lewis with the following offenses:
• Possession with the intent to distribute cocaine, in violation of La. R.S. 40:967(B)(1) ;
• Battery of a police officer, in violation of La. R.S. 14:34.2 ; and
• Resisting an officer, in violation of La. R.S. 14:108.
On November 8, 2013, Mr. Lewis was arraigned; he pled not guilty.
On December 18, 2013, Mr. Lewis filed various motions, including motions to suppress evidence, statement, and identification. On May 9, 2014, the district court held a hearing on Mr. Lewis' motions to suppress evidence and statement. After the hearing, the district court took the matters under advisement. On May 19, 2014, the district court found probable cause and denied the motions to suppress. Mr. Lewis' writ application seeking review of this ruling was denied as untimely. State v. Lewis, 14–0634 (La.App. 4 Cir. 6/26/14) (unpub. ).
On June 12, 2014, a competency hearing was held; and the district court found Mr. Lewis competent to proceed. On July 16, 2014, a twelve-person jury trial was held on the charge of possession with the intent to distribute cocaine. Simultaneously, a judge trial was held on the misdemeanor charges of battery of a police officer and resisting an officer. On that same day, the jury found Mr. Lewis guilty of the lesser offense possession of cocaine, and the district court judge found him guilty of the misdemeanor offense of attempted battery of a police officer and resisting an officer.1
On August 7, 2014, the district court denied Mr. Lewis' motion for new trial and motion for post-verdict judgment of acquittal. On August 12, 2014, the district court sentenced Mr. Lewis as follows: five years at hard labor for possession of cocaine; ninety days for the attempted battery of a police officer; and ninety days for resisting an officer; and these sentences to be served concurrently.
On September 3, 2014, the State filed a habitual offender bill of information, alleging that Mr. Lewis was a fourth felony offender. Mr. Lewis subsequently filed a motion to quash. Following a hearing, the district court adjudicated Mr. Lewis a third felony offender. The district court vacated the original sentence and resentenced Mr. Lewis to ten years at hard labor without benefit of probation, parole, or suspension of sentence. This appeal followed.
STATEMENT OF THE FACTS
On May 14, 2013, in the late morning, Detective Cory Foy, a Fourth District narcotics officer of the New Orleans Police Department ("NOPD"), was on proactive patrol in New Orleans. Detective Foy was following NOPD Detectives Terrence Hilliard and Christopher Pugh, who were in another police unit. As they neared the
intersection of Slidell Street and Nunez Street, Detective Hilliard and Detective Pugh noticed the driver and the passenger in a taxi cab were not wearing seatbelts. The detectives thus decided to conduct a traffic stop. Although he did not see the seatbelt violation from his vehicle, Detective Foy observed the other detectives activate the lights and sirens on their vehicle and pull over the taxi cab. He followed the other detectives and pulled over to the side of the road.
Detective Foy approached the passenger's side of the vehicle, where Mr. Lewis was sitting, while the other detectives approached the driver's side. Detective Pugh asked the driver, Chanel Lee, for her identification, the vehicle's registration, and proof of insurance. Meanwhile, Detective Foy asked Mr. Lewis for his identification.2 When Mr. Lewis advised that he could not produce any identification, Detective Foy asked him to exit the vehicle and to verbally provide his name and date of birth.
According to Detective Foy, as Mr. Lewis exited the vehicle, he kept sticking his hands into the coin pocket in his pants. Detective Foy also noticed about one inch of a plastic sandwich bag protruding from Mr. Lewis' pocket. Detective Foy asked Mr. Lewis what was in his pocket and repeatedly asked him to stop reaching into his pocket. When Mr. Lewis failed to comply, Detective Foy placed him in handcuffs for safety purposes. At that time, Detective Foy advised Mr. Lewis of his Miranda rights.3 Mr. Lewis nodded, indicating that he understood his rights.
Detective Foy informed Mr. Lewis that he was under investigation for a possible narcotics violation. According to Detective Foy, Mr. Lewis then stated that he had "bunk" in his pocket, meaning it was fake narcotics that he occasionally sells. Detective Foy testified that Mr. Lewis offered to allow the detectives to test the substance. When Detective Foy retrieved the bag from Mr. Lewis' pocket, he observed that it was two bags—one bag contained three individually wrapped pieces of an off-white substance and the other bag contained six pieces of the same individually wrapped substance. Detective Foy testified that he had seen "bunk" twenty-five to thirty times. According to Detective Foy, the substance retrieved from Mr. Lewis did not resemble "bunk;"4 rather, it appeared to be crack cocaine. Based on the number of individually wrapped rocks and Mr. Lewis' admission that he occasionally sold "bunk," Detective Foy advised Mr. Lewis that he was under arrest for possession with the intent to distribute cocaine. Detective Foy conducted a search incident to arrest and found $60.00 in cash in Mr. Lewis' pocket. He also found a Louisiana identification card stating Mr. Lewis' name and information.5
As Detective Foy was stepping around the vehicle to give the substance to Detective Hilliard for testing, Mr. Lewis slipped one of his hands out of the handcuffs and fled down Nunez Street. Detective Foy and Detective Hilliard ran after Mr. Lewis.6 After running about half a block, Mr.
Lewis turned into a driveway and jumped a low fence. Detective Hilliard testified that he managed to grab ahold of Mr. Lewis' shirt, but Mr. Lewis maneuvered out of the multiple shirts he was wearing. Detective Hilliard further testified that Mr. Lewis then struck him in the face and continued running. The detectives were able to apprehend Mr. Lewis at the back of the yard when he attempted to scale a tall wooden fence.
As the detectives walked him back to the police vehicles, Mr. Lewis complained of chest pains, of having difficulty breathing, and of being hot.7 The detectives called for an EMS unit, and they laid Mr. Lewis in the back of a police unit to await its arrival. Detective Hilliard testified that he believed that someone poured water on Mr. Lewis' back to help cool him off. Detective Foy and Detective Hilliard testified that Mr. Lewis was conscious when EMS personnel arrived, although they did not hear or recall if Mr. Lewis responded to the EMTs.
Luke Price, the EMT who responded to the call, testified that he made an assessment of Mr. Lewis' condition, took his vital signs, and administered an IV line. He stated that while Mr. Lewis did not speak to him during the treatment, he was conscious, and it appeared that Mr. Lewis chose not to speak. Mr. Price did not notice any physical trauma on Mr. Lewis' body, and he stated that he could not find anything wrong with Mr. Lewis. Mr. Price subsequently transported Mr. Lewis to the hospital, and Detective Hilliard rode in the ambulance with them.
Mr. Lewis was admitted to the hospital for respiratory stress and possible seizures and remained there for a few days. Mr. Price stated that once Mr. Lewis arrived at the hospital, tubes were put down his throat. The detectives subsequently obtained an arrest warrant for Mr. Lewis. On August 24, 2014, Mr. Lewis was arrested.
At trial, the State and the defense stipulated that the NOPD Crime Lab tested the substance seized from Mr. Lewis, and that it was positive for cocaine.
Edward Sherman testified at trial that he lived in the house where the detectives captured Mr. Lewis. He stated...
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