State v. Odle, 02-0226.
| Decision Date | 13 November 2002 |
| Docket Number | No. 02-0226.,02-0226. |
| Parties | STATE of Louisiana v. David Emanuel ODLE and Andre Ricardo Shaw. |
| Court | Court of Appeal of Louisiana — District of US |
Michael Harson, District Attorney, David F. Hutchins, Asst. District Attorney, Lafayette, LA, for Plaintiff/Appellee State of Louisiana.
Richard V. Burnes, Alexandria, LA, for Defendant/Appellant, Andre Richardo Shaw.
Jon Scott Decuir, New Iberia, LA, for Defendant/Appellant David Emanuel Odle.
Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
The defendants, David Emanuel Odle and Andre Ricardo Shaw, were both convicted of attempted possession of cocaine (over 400 grams), in violation of La.R.S. 40:967(F)(1)(c) and La.R.S. 14:27 or La. R.S. 40:979. Odle was sentenced to eighteen years at hard labor and Shaw was sentenced to twenty years at hard labor. Both filed appeals challenging their convictions and sentences. For the following reasons, we affirm.
On June 2, 1997, Defendants were charged by bill of information with one count each of possession of over 400 grams of cocaine. Both Defendants, who were represented by the same attorney, entered written pleas of not guilty in June 1997. On October 15, 1998, the State filed a motion to determine whether a conflict of interest existed in the representation of Defendants by the same attorney. At the hearing on the motion, the trial court informed Defendants of the possibility of a conflict and of their right to be represented by separate counsel. Both Defendants indicated that they wanted the same attorney to represent them. The trial court found no conflict existed at that time and allowed counsel to represent them. Subsequently, a hearing was held on a motion to suppress filed by Defendants, which was denied. Defendants sought review of the denial in this court, and we found no error in the trial court's ruling. State v. Odle and Shaw, an unpublished writ 99-96 (La. App. 3 Cir. 3/25/99), writ denied, 99-1206 (La.5/14/99), 743 So.2d 651, cert. denied, 528 U.S. 953, 120 S.Ct. 377, 145 L.Ed.2d 295 (1999).
On the eve of trial, Counsel informed the trial court that Shaw had retained another attorney, Thomas Guilbeau. Counsel also stated for the record that Guilbeau's motion to continue and joint motion to withdraw and enroll as counsel was denied by the court. The trial court denied the motions to withdraw, enroll, and to continue; trial was scheduled to begin the following morning. Both Defendants proceeded to a trial by jury, with the jury subsequently returning a verdict of "attempted possession of cocaine" against each. In due course, Defendants were sentenced to serve thirty years at hard labor with the first fifteen years to be served without benefit of probation, parole, or suspension of sentence and to pay a fine of $300,000. A motion to reconsider sentence was granted and, at that hearing, Defendants were represented by separate attorneys, neither of whom were the original trial counsel. Pursuant to the motions to reconsider sentence, the trial court vacated the previously imposed sentences and sentenced Shaw to twenty years at hard labor and Odle to eighteen years at hard labor. The first ten years of both sentences were imposed without benefit of probation, parole, or suspension of sentence. No fines were imposed. Finally, on September 20, 2001, the trial court amended the sentences to delete the restriction on parole, probation, or suspension of sentence for the first ten years of each sentence. Both Defendants now appeal their convictions and sentences, assigning several assignments of error.
On May 11, 1997, Shaw was stopped for speeding. Odle was a passenger in the vehicle. As a result of Shaw's suspicious behavior, an overwhelming smell of gasoline and air fresheners, conflicting information given by both, a consent to search personal belongings given by Odle, and a narcotics alert by a canine, deputies searched the car. During the search, deputies found several sealed cans of cocaine in the vehicle's gas tank. Both Defendants were arrested for possession of the narcotics.
Shaw claims the evidence was insufficient to find him guilty of the verdict rendered—attempted possession of over 400 grams of cocaine. He does not dispute the existence of the cocaine in the gas compartment of the vehicle, but claims the evidence was insufficient "to show he had the requisite knowledge of the existence of and control over the cocaine." Shaw acknowledges that testimony was presented concerning excessive air fresheners found in the vehicle, as well as a WD-40 smell, but he claims that no evidence was presented showing that he was aware or should have been aware of any contraband in the gas tank. He further notes the fact that the drugs were found inside sealed containers located inside the gas tank and the vehicle belonged to his wife, which had been purchased only a few weeks before he and Odle, his cousin, took their trip.
We note that Shaw was found guilty of attempted possession of 400 or more grams of cocaine. Attempt is defined by La.R.S. 14:27(A)1 as follows:
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
La.R.S. 40:967(C) and (F)(1)(c) provide:
C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.
F. Other penalties for possession.
(1) Except as otherwise authorized in this Part:
....
(c) Any person who knowingly or intentionally possesses four hundred grams or more of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule II(A)(4) of R.S. 40:964, shall be sentenced .. .
It is clear from the definition of attempt found in La.R.S. 14:27, that a finding of specific intent to commit an offense is required to prove an attempt to commit that offense. Thus, the verdict rendered by the jury in the present case, attempted possession of 400 or more grams of cocaine, requires a finding of specific intent to commit the charged offense. However, the offense of possession of 400 or more grams of cocaine, requires a showing of general intent. In State v. Clift, 339 So.2d 755, 761 (La.1976), the supreme court found, "Louisiana law requires only a showing of general intent, not specific intent, in order to establish that a person is guilty of possessing heroin." The court cited the following language from State v. Banks, 307 So.2d 594, 596 (La.1975): "In spite of the words in R.S. 40:966 that 'it shall be unlawful for any person knowingly or intentionally . . .' to do the prohibited acts, the statute requires no more than general criminal intent." The charged offense in the present case, possession of 400 or more grams of cocaine, also contains the language, "It is unlawful for any person knowingly or intentionally to possess... "La.R.S. 40:967(C). Thus, the specific intent necessary to find the Defendant guilty of the responsive verdict of attempted possession of 400 or more grams of cocaine is more stringent than the general intent necessary to find him guilty of possession of the drugs.
In that regard, we look for guidance to State v. Cortez, 96-859 (La.App. 3 Cir. 12/18/96), 687 So.2d 515, where the defendant was charged with cruelty to a juvenile and convicted of attempted cruelty to a juvenile. Noting that the defendant did not object to the jury being given the responsive verdict of attempted cruelty to a juvenile, we determined that we should first examine whether there was sufficient evidence to find him guilty of the offense charged, cruelty to a juvenile.2 We stated the following:
In State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), the Louisiana Supreme Court held:
[I]f the defendant does not enter an objection [to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict] (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury.
It would be unfair to permit the defendant to have the advantage of the possibility that a lesser "compromise" verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object. Therefore, at least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged.
Pursuant to Elaire, therefore, we will first review the record for a determination of the sufficiency of the evidence related to the greater offense of cruelty to a juvenile. If we find that the evidence presented at trial would have been sufficient to sustain a conviction of cruelty to a juvenile, our analysis ends and we must affirm. If, however, we determine that there was...
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