State v. Reed
| Decision Date | 29 October 1986 |
| Docket Number | No. 17682-KA,17682-KA |
| Citation | 499 So.2d 132 |
| Parties | STATE of Louisiana, Appellee, v. Clifford REED, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Elijah Orum Young, Jr., Monroe, for appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, James Allan Norris, Jr., Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appellee.
Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
The defendant, Clifford Reed, was charged with three counts of distribution of marijuana, contrary to the provisions of LSA-R.S. 40:966. A twelve person jury found him guilty on all three counts charged. Subsequently, the trial court judge imposed a sentence of three years at hard labor for Counts 1 and 2 and four years hard labor for Count 3 to run consecutively to Counts 1 and 2. On appeal, the defendant has raised six assignments of error. Assignment of Error No. 4 has not been briefed and, therefore, is considered abandoned. We find no merit to the remaining assignments of error and affirm the defendant's convictions and sentences.
On July 22, 1983, Officers Bobby Tillman and Larry Buford of the Monroe Police Department were assisting the Ouachita Metro Narcotics Unit in an undercover capacity when they learned that a black male known only as "Cliff" was selling marijuana at the Plantation View Apartments in Monroe, Louisiana. The officers, accompanied by a confidential informant, drove to the apartments seeking the whereabouts of "Cliff." After a black male identified himself as the person they sought, Tillman asked if he had marijuana for sale. Cliff answered affirmatively and motioned for the officers and the confidential informant to enter his apartment. The defendant went down a hallway in the apartment and returned with three clear plastic bags of what was later determined to be marijuana which he handed to Officer Tillman. Tillman handed Officer Buford one bag and Buford gave the defendant $25. Tillman retained a bag, gave the defendant $25 and returned the remaining bag to the defendant. Officers Tillman and Buford testified that the confidential informant neither handled the drugs nor the money.
Officers Tillman and Buford later contacted the defendant on August 4, 1983, when another transaction was conducted at the same location. On this occasion, Buford entered the apartment and bought marijuana while Tillman waited in the car. The confidential informant was not with them at this time.
An arrest warrant was subsequently issued to be executed as part of a general "round-up" of suspects. However, defendant could not be found until June 6, 1984, when he was recognized by Officer Tillman who was responding to a disturbance call in connection with his regular patrol duties. After confirming that an outstanding arrest warrant for "Cliff" existed, Tillman approached Reed and arrested him. When informed of the nature of the charges against him, the defendant stated that "he was glad all this marijuana stuff was over."
Defendant assigns as error the trial court's denial of his Motion to Quash Count 2 of the Bill of Information. Reed contends that he is being punished twice for criminal conduct that constituted only one transaction. Defendant argues that the second count was invalid on grounds of duplicity and double jeopardy.
The record establishes that Reed was charged by bill of information with three counts of distribution of marijuana. Counts 1 and 2 are alleged to have occurred on the July 22nd meeting between the two undercover officers and the defendant. The bill of information does not specify to whom the defendant distributed the marijuana. The record shows that after Officer Tillman testified in the state's case-in-chief and defense counsel orally moved the court to quash the second count on grounds of double jeopardy. Counsel argued that the evidence showed that the suspect transferred the marijuana directly to Officer Tillman who then transferred the marijuana to Officer Buford. Reed contends that he engaged in only one distribution--to Tillman--and that he cannot be held responsible for Tillman's distribution to Buford. The trial court denied the motion without reasons.
Our procedural scheme in criminal proceedings contemplates that double jeopardy issues be raised by a written motion to quash. LSA-C.Cr.P. Arts. 535 and 593. An objection to the misjoinder of offenses may be urged only by a motion to quash the indictment. LSA-C.Cr.P. Art. 495. While we take cognizance of the aforementioned procedural defects in the instant case, we consider and resolve defendant's position on the merits of the issue.
Both the state and federal constitutions provide that no person shall twice be put in jeopardy of life or liberty for the same offense. U.S. Const. Amend. V; LSA-Const. Art. I, § 15 (1974); and LSA-C.Cr.P. Art. 591. The double jeopardy clause protects the accused against multiple punishment for the same offense as well as a second prosecution for the same offense after acquittal or conviction. State v. Coody, 448 So.2d 100 (La.1984).
Defendant Reed was charged with two counts of distribution of marijuana on the same date. The defendant argues that he transferred the marijuana directly to Officer Tillman who then transferred the marijuana to his fellow officer. The defendant, therefore, contends that the transaction was one distribution.
The following cases provide helpful analogies. In State v. Simpson, 464 So.2d 1104 (La.App. 3d Cir.1985), defendant was charged with three counts of simple criminal damage to property in violation of LSA-R.S. 14:56. Defendant and another cut down over two miles of barbed-wire fence on three adjacent tracts of land. The three tracts of land were separately owned by three individuals.
Simpson argued that he was placed in double jeopardy because the prosecution charged him with three counts of criminal damage to property when there was only one act of criminal conduct. Relying upon LSA-C.Cr.P. Art. 493, the court noted that the offenses charged did arise out of the same act and were all part of a common scheme to destroy a fence row. However, the court concluded that the property of three different parties had been destroyed and thus the defendant was properly charged with three separate counts of the same offense.
In State v. Gipson, 359 So.2d 87 (La.1978), Gipson was charged by bill of information with three counts of armed robbery stemming from a grocery store robbery in Shreveport where the patrons were also individually robbed. Defendant argued double jeopardy on the basis that only one armed robbery occurred with three victims rather than three separate armed robberies. Thus, the issue was whether the fact that the state charged the defendant with separate acts of armed robbery where the defendant had simultaneously robbed several victims subjected the defendant to double jeopardy. The Louisiana Supreme Court concluded that LSA-R.S. 14:64 intended to protect each person offended in an armed robbery and therefore each person robbed was the victim of a separate crime. "It is not double jeopardy therefore to punish the robber for each person he subjects to this offensive conduct."
The Court in Gipson relied upon State v. McCarroll, 337 So.2d 475 (La.1976), wherein McCarroll entered a restaurant, brandished a weapon and warned that anyone who moved would be killed. Consequently, McCarroll was charged with nine counts of aggravated assault--one count for each victim present in the restaurant during the incident. The court rejected McCarroll's double jeopardy argument that only one assault with multiple victims was involved. Delving into the legislative intent of LSA-R.S. 14:36-37 (aggravated assault) and 14:33 (battery), the court concluded that the legislature's aim was to protect each citizen from the defined criminal conduct.
In the instant case, Reed was aware that both undercover officers sought to purchase marijuana from him. He invited them into his apartment to accommodate their wishes. He retrieved the marijuana for them and accepted $25 in return from each officer/purchaser. There is sufficient evidence of his intent to distribute marijuana to each buyer.
Considering the foregoing jurisprudence and the facts established at trial, and assuming arguendo the procedural propriety of defendant's complaint here, we determine that the evidence is sufficient to show that there were two separate "victims." Under these circumstances, there was sufficient evidence for the factfinder to have determined that there were two separate transactions on July 22nd in the defendant's residence, although perhaps part of a common scheme.
Reed also argues that Count 2 of the bill of information was duplicitous. A similar contention under similar circumstances was resolved adversely to the defendant in State v. Simpson, supra, as follows:
Duplicity in an indictment does not apply to the joinder in one indictment of several counts for different offenses. Slovenko, The Accusation In Louisiana Criminal Law, 32 Tul.L.Rev. 47, 71 (1957). Duplicity is the charging of more than one distinct crime in one count of an indictment. Id. In this case, the prosecution did not charge more than one distinct crime in any of the counts of the indictment.
It is clear from the bill of information that only one offense was alleged in each count. Therefore, this assignment of error is without merit.
Defendant next argues that the trial court erred when it refused to order the state to disclose the identity of the confidential informant. Reed contends that the confidential informant was an essential participant in the transaction because he located the defendant, witnessed the alleged transaction and participated in the buy.
The record reveals that defense counsel orally moved the court to require the state to disclose the identity of the...
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