State v. Lobato

• Decision Date: 01 July 1992
• Docket Number: No. 91-K-2738,91-K-2738
• Citation: 603 So.2d 739
• Parties: STATE of Louisiana v. Daniel LOBATO.
• Court: Louisiana Supreme Court

Page 739

603 So.2d 739

STATE of Louisiana v. Daniel LOBATO.

No. 91-K-2738.

Supreme Court of Louisiana.

July 1, 1992.

Lavalle B. Salomon, Davenport, Files & Kelly, Monroe, for applicant.

Richard Phillip Ieyoub, Atty. Gen., Karen L. Godwin, Asst. Atty. Gen., Hon. Jerry L. Jones, Dist. Atty., Marcus Robley Clark, Asst. Dist. Atty., for respondent.

HALL, Justice.

Defendant, Daniel Lobato, was convicted of conspiracy to possess marijuana with intent to distribute, LSA-R.S. 14:26 and 40:966, and was sentenced to four and one-half years at hard labor with a fine of $1,250 plus court costs, in default of which defendant is to serve six additional months. On appeal, the conviction and sentence were affirmed. 588 So.2d 1378 (La.App. 2d Cir.1991). The defendant's writ application was granted by this court. 594 So.2d 1306 (La.1992).

The primary issues raised by defendant's assignments of error concern: (1) the admissibility of recorded telephone conversations between defendant and his two co-conspirators made after defendant's arrest and in conjunction with his cooperation with the Louisiana State Police; (2) the exclusion of evidence offered by defendant intended to show his lack of knowledge and participation in the criminal conspiracy; (3) whether defendant was denied effective assistance of counsel by reason of his counsel's conflict of interest in representing an alleged co-conspirator; and (4) excessiveness of sentence.

Because we conclude the trial court did not err in determining defendant failed to carry his burden of proving withdrawal from the conspiracy prior to the time the conversations were recorded, we hold the recorded statements of defendant's co-conspirators admissible under LSA-C.E. Art. 801(D)(3)(b). Defendant's statements in those recorded conversations are admissible as nonhearsay. Any error in excluding evidence offered by defendant did not materially affect defendant's opportunity to present a defense and was harmless. The ineffective assistance of counsel claim based on counsel's conflict of interest presents a serious issue which requires an evidentiary hearing. The claim of excessive sentence is without merit. Accordingly, the defendant's conviction and sentence are conditionally affirmed. The case is remanded to the district court for an evidentiary hearing on defendant's claim of ineffective assistance of counsel. If the district court determines that the ineffective assistance of counsel claim has merit, the court should set aside the conviction and order a new trial. If the district court determines that the ineffective assistance of counsel claim is without merit, defendant's right to appeal from that ruling is reserved to him.

I.

On Sunday, December 14, 1986, defendant was stopped by Louisiana State Police Trooper Mike Epps on an I-20 exit near Monroe, Louisiana, for a routine traffic violation. After Epps discovered defendant was a Texas resident and the vehicle he was driving was registered in Texas in the name of a third party, defendant told Epps, in conversation, that the vehicle belonged to his girlfriend and that he had traveled from Austin, Texas to Biloxi, Mississippi for the weekend. Defendant stated he did not bring any luggage with him although Epps had noticed a suitcase in the backseat of the vehicle. Epps requested and received written consent from defendant to search the vehicle after Louisiana State Police Trooper Jackie Coleman arrived at the scene. Epps noticed an odor of marijuana during his search of defendant's vehicle. A stronger odor of marijuana was noticed in the empty suitcase where marijuana gleanings were discovered. Upon his arrest for simple possession of marijuana, defendant produced approximately $18,000 cash in small bundles from his person and explained that he had picked up the money for a roofing job and that it belonged to a third party.

At Louisiana State Police headquarters in Monroe, Sgt. James Cannon spoke with defendant to investigate the possibility that a marijuana smuggling operation had been uncovered. According to Cannon, defendant admitted transporting fifteen to sixteen pounds of marijuana for Robert Phillips from Austin, Texas to Jackson, Mississippi, delivering the marijuana to Gary Veazey, and receiving $18,000 in cash from Veazey. Defendant agreed to cooperate with the State Police and, in a plan formulated by the State Police, called Robert Phillips, the alleged seller, in Austin, Texas and informed him that he had been robbed of the $18,000 at a truck stop enroute from Jackson to Austin by associates of Gary Veazey, the alleged purchaser. After several telephone conversations between defendant and Phillips and defendant and Veazey, Veazey met defendant in Monroe to deliver the $3,000 balance owed on this marijuana transaction and to check on the robbery. Veazey was arrested after the money was handed to defendant.

The telephone calls were monitored and recorded by the police. Defendant was wearing a recording device during his meeting with Veazey in Monroe and that conversation was also recorded.

On Monday, December 15, 1986, the day after his arrest and cooperation with the authorities, defendant made a recorded statement. In that statement, defendant indicated he had been contacted by Phillips by telephone on Friday, December 12, 1986, and asked if he would like to make $350-450 plus expenses over the weekend driving a car for him to Mississippi to collect on a roofing debt owed him from someone living in Mississippi. Defendant agreed, stating the deal seemed legitimate and that he was unaware of any illegal activity Phillips may have been previously engaged in. Although defendant believed he was to drive to Biloxi, Phillips instructed him to drive to Dallas, take I-20 to Mississippi and then make contact upon arrival in Jackson. When defendant contacted Phillips after arriving in Jackson, Phillips instructed him to register at a motel. Veazey called defendant at the motel to confirm his room number and later met defendant at the motel. Veazey asked defendant if he had anything with him and then borrowed the keys to defendant's vehicle. Upon Veazey's return to the motel several hours later, defendant became nervous when Veazey handed him a sack with $18,150 cash because he expected a check and then "knew something wasn't right," believing the cash to be drug money. Veazey stated he was "short" and defendant counted the money on Veazey's request. Defendant stated Phillips had told him not to worry "if Gary is short because I'm a little short too ... tell them I'm a little light." Defendant later left the motel to drive back to Austin. Defendant stated that after being stopped by the State Trooper, he consented to the search of his vehicle as he was confident that he didn't have any drugs and that there were no drugs in the vehicle. Defendant indicated he did not initially cooperate with the State Police but decided to do so because he didn't want to go to jail over $300 and then told the authorities everything he knew.

During a jury trial on January 8-11, 1990, Cannon testified defendant initially told him he had been sent to Jackson, Mississippi to collect a roofing debt. However, defendant subsequently admitted he had been hired by Robert Phillips to transport 15 to 16 pounds of marijuana from Austin to Jackson, with instructions to contact Phillips upon arrival at a motel in Jackson. After doing so, defendant was contacted by Veazey at the motel. Leaving defendant at the motel, Veazey took defendant's vehicle and returned several hours later with a sack containing $18,000 cash wrapped in small bundles. Veazey handed the money to defendant after indicating that he was approximately $3,000 "short" on the money he owed Phillips on this transaction.

Cannon testified defendant stated he knew he was transporting marijuana and, although he had never done anything like this before, did it because he needed the money. Defendant stated he was to be paid approximately $400 by Phillips for his participation in this transaction as courier. A gas receipt indicating defendant had traveled through Monroe the previous day and Phillips' business card was found on defendant's person. Defendant's statements to Cannon were not recorded.

Cannon and other officers with the Louisiana State Police testified as to defendant's cooperation in making the recorded telephone calls and in meeting with Veazey. The recorded conversations were introduced and admitted into evidence at trial over defense counsel's objection.

Veazey testified that he contacted defendant at the motel after receiving a telephone call from Phillips. According to Veazey's testimony, defendant accompanied Veazey to defendant's vehicle, retrieved the suitcase out of the trunk, and placed it in Veazey's vehicle. Veazey returned to the motel several hours later with $18,000, which defendant counted upon receipt. Veazey left the motel. After later receiving a telephone call from Phillips indicating defendant had been robbed, Veazey drove to Monroe that evening to deliver the $3,000 balance to defendant and to investigate the robbery.

Defendant testified he did not tell Cannon that he had transported marijuana for Phillips from Austin to Jackson. Rather, defendant testified the only statement made to the State Police was that made on December 15, 1986, the day after his arrest and cooperation. During his testimony, defendant indicated his employer had told him Phillips needed someone to travel to Mississippi to collect an overdue roofing debt and that he agreed to do so because he needed the money. Defendant stated he did not search the vehicle which had been borrowed by Phillips from a third party before embarking on his trip and did not suspect anything illegal. Defendant also stated he was not suspicious about being instructed to give Veazey the keys to the vehicle because Veazey arrived at the motel in a company vehicle. Defendant testified he became nervous and...