State v. Perez
| Decision Date | 31 October 1990 |
| Docket Number | No. 21773-KA,21773-KA |
| Citation | 569 So.2d 609 |
| Parties | STATE of Louisiana, Appellee, v. Lorenzo PEREZ, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Jones, Charles & Gilmore by Arthur Gilmore, Jr., Monroe, for appellant.
William J. Guste, Jr., Atty. Gen., James A. Norris, Jr., Dist. Atty., Marcus R. Clark, John P. Spires, Asst. Dist. Attys., for appellee.
Before FRED W. JONES, Jr. and NORRIS, JJ., and LOWE, J. Pro Tem.
Defendant Perez, found guilty by jury verdict of conspiracy to distribute marijuana, La.R.S. 14:26 and La.R.S. 40:966, and possession of marijuana over 60 but less than 2000 pounds, R.S. 40:966(E)(1), was sentenced to two consecutive ten year terms. He appealed, attacking the sufficiency of evidence upon which he was convicted and arguing the excessiveness of his sentence. Finding substantial evidence to support the jury's verdict, proper consideration and sufficient articulation of La.C.Cr.P. Art. 894.1 guidelines and that the sentence is not unconstitutionally excessive, we affirm.
In 1984-85 Victor Soto, who was incarcerated in a Texas federal penitentiary, met Augie Augustine and the two planned drug transactions to be executed upon their release. After their release, Augustine returned to his native country, Mexico, and Soto returned to New Orleans.
In April 1988 Soto and Augustine arranged a drug transaction. Augustine was to supply Soto with a large quantity of marijuana on a consignment basis with Soto agreeing to perfect the sale of and make payment for the marijuana "within a reasonable time". Pursuant to Augustine's instructions, Soto flew to Tucson, Arizona where he was contacted by Augustine's brother-in-law, defendant Lorenzo Perez. Defendant was in charge of the drug operation on the United States side of the border, being one step below Augustine in the organization's hierarchy. Once a sufficient quantity of marijuana was smuggled into the U.S. from Mexico, Soto, Perez and a third man, Rogillio, weighed and loaded 230 pounds of marijuana into Soto's car. After unsuccessful attempts at selling a portion of the marijuana in Las Vegas, Soto hired a driver, Thomas Sullivan, to pick up the marijuana in Las Vegas and drive it to New Orleans.
On April 25, 1988 while en route to New Orleans, Sullivan was stopped for a traffic violation on I-20 and arrested in Richland Parish. The arresting officer searched Sullivan's vehicle and discovered 96.6 pounds of marijuana in the trunk. Following his arrest Sullivan agreed to assume confidential informant status for the Louisiana State Police.
Feigning illness and inability to travel, Sullivan phoned Soto and successfully lured him to Monroe to pick up the marijuana. On April 26 Soto and an accomplice arrived at Sullivan's Monroe motel room. Soto called Augustine, who was in Mexico, from Sullivan's room, informed him of his driver's illness and advised he would be unable to travel to Mexico that day to meet the organization's required marijuana payment schedule. Then Soto and the accomplice entered the adjacent motel room where the marijuana had been stored and loaded it into Soto's vehicle. They were immediately arrested. Soto agreed to assume confidential informant status and assist law enforcement authorities in arresting higher-ups in the Mexican-American marijuana smuggling organization.
On May 4, under the direction of investigating police officers, Soto traveled to Mexico where he met with Augustine and discussed the money he owed and future narcotic deliveries. Over the next several weeks Soto spoke several times with Augustine and defendant over the phone and succeeded in delaying their collection efforts.
On May 14 Augustine, defendant and Rogillio made a surprise visit to New Orleans. Augustine, apparently concerned that Soto might have cheated them, advised Soto in defendant and Rogillio's presence that he wanted to see the marijuana or be paid the agreed $50,000 immediately. To pacify them Soto, with the assistance of narcotic officers, arranged to show them the marijuana.
On May 15 Sergeant James Cannon and another undercover officer met Soto and defendant in a hospital parking lot in Ferriday. Defendant was given the trunk key of the vehicle in which Sergeant Cannon had been traveling. The trunk contained the 96.6 pounds of marijuana which had been seized from Sullivan and additional marijuana which officers had added to make up the total poundage originally "fronted" to Soto. After inspecting only a portion of the marijuana, but apparently satisfied it was of identical quality and sufficient quantity as previously supplied Soto, defendant indicated he wanted to take the vehicle and marijuana to New Orleans. Because a release of the marijuana would mandate an immediate end to the investigation Soto and Sergeant Cannon successfully convinced defendant it would be dangerous to drive the marijuana to New Orleans. Defendant agreed to allow Soto additional time to sell the marijuana.
When Soto had not made payment by June 8, defendant informed him he would be picking up the marijuana and transferring it elsewhere for sale.
On June 9 defendant traveled by car to Monroe where Soto had told him the marijuana was being stored. Prior to his arrival, law enforcement officials stored the seized and supplemented marijuana in a mini-warehouse and gave Soto the key. Later that afternoon Soto, defendant and a companion traveled to the mini-warehouse where they were met by Sergeant Cannon. After examining the marijuana, defendant locked the door to the warehouse, put Soto's key in his pocket, and drove Soto to the Monroe airport.
On the afternoon of June 10, Joe Hardeman and Charles Pankey arrived in Monroe. Defendant and Hardeman traveled to the storage facility and loaded the marijuana into a freezer in the back of Hardeman's truck. When defendant and Hardeman arrived at Eastgate Shopping Center, where Pankey and Mauricio Lopez were waiting for them, the four were arrested. The seized and supplemented marijuana was recovered by Louisiana State Police Officers pursuant to a valid search.
On July 25, 1988 a bill of information was filed charging defendant with possession of marijuana in excess of 60 but less than 2000 pounds, and conspiracy to distribute marijuana. Trial commenced on October 23, 1989. The State presented the testimony of Soto, Hardeman, law enforcement officials involved in the operation and a forensic chemist. Exhibits including tapes of recorded telephone conversations and photographs indicating defendant's involvement in the drug organization were also introduced. The defense presented no evidence. The jury returned guilty verdicts on both counts.
Defendant first assigns as error the insufficiency of the evidence to support the jury's verdict on either the conspiracy or possession charge. In assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier-of-fact could have found defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1977).
The bill of information filed against defendant charged that he did willfully and unlawfully conspire with Hardeman, Pankey, Lopez and others between the dates of April 1, 1988 and June 10, 1988 to distribute marijuana. Conspiracy to commit a crime is an inchoate offense separate and distinct from the completed criminal act. The state's burden in proving that defendant committed conspiracy to distribute marijuana is that it must show that an agreement or combination of two or more persons existed for the specific purpose of distributing marijuana and that one or more parties to the agreement did an act in furtherance of the agreement's object. La.R.S. 14:26; State v. Richards, 426 So.2d 1314 (La.1982); State v. Brown, 398 So.2d 1381 (La.1981). An overt act need not be an unlawful act; it may be any act, however innocent in itself, accompanying or following the agreement, which is done in furtherance of its object. State v. Richards, supra; State v. Rittiner, 341 So.2d 307 (La.1976). The elements of conspiracy may be proven by direct or circumstantial evidence. State v. Brown, supra.
Hardeman testified he reached an agreement with defendant to pick up marijuana in Monroe and take it to Texas for distribution. Hardeman stated he went to Monroe on June 10, met with defendant, accompanied him to the warehouse where the marijuana was stored and assisted him in loading it into Hardeman's truck. The two then met Pankey and Lopez who were waiting for them at the Eastgate Shopping Center and were aware of the proposed and ongoing transactions. The testimony of Soto and several surveillance officers as well as photographic exhibits corroborated Hardeman's testimony. This evidence shows beyond a reasonable doubt that defendant conspired with Hardeman, Pankey and Lopez to distribute marijuana and that overt acts were performed in furtherance of the conspiracy.
Defendant correctly argues there could be no criminal conspiracy between himself and Soto as Soto was acting as an agent for the State. State v. Joles, 485 So.2d 212 (La.App. 2d Cir.1986). However, defendant fails to appreciate the criminal significance of his actions in connection with Soto prior to Soto's agreement to assume confidential informant status following his arrest on April 25, 1988. Soto testified he had met defendant in Tucson, at Augustine's instruction, in early April and procured 230 pounds of marijuana from him. He described how defendant and Rogillio weighed out the marijuana and assisted him in loading it into his vehicle. He stated that the marijuana was given to him on consignment to be paid for after its distribution. Soto agreed to pay defendant for the marijuana in weekly or bi-weekly increments, with payment in full owed...
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