State v. Ruiz, 15526-KA

• Decision Date: 15 August 1983
• Docket Number: No. 15526-KA,15526-KA
• Citation: 437 So.2d 330
• Parties: STATE of Louisiana, Appellee, v. Jesus RUIZ & Geoffrey Austin Sweeney, Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 330

437 So.2d 330

STATE of Louisiana, Appellee, v. Jesus RUIZ & Geoffrey Austin Sweeney, Appellants.

No. 15526-KA.

Court of Appeal of Louisiana Second Circuit.

Aug. 15, 1983.

Stay Order Denied Sept. 19, 1983.

Writ Denied Nov. 4, 1983.

Lee E. Ineichen, Jr., Monroe, for appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., 4th Judicial Dist., Nancy F. Gilliland, Asst. Dist. Atty., Monroe, for appellee.

Before HALL, FRED W. JONES, Jr., and SEXTON, JJ.

SEXTON, Judge.

Defendants Jesus Ruiz and Geoffrey Sweeney appeal their conviction in a bench trial on August 17, 1982, for the offense of possession of marijuana with intent to distribute, and the subsequent sentence of Ruiz to two and one-half years imprisonment at hard labor and the sentence of Sweeney to one and one-half years at hard labor.

The defendants were jointly charged and jointly tried, and neither presented evidence at the conclusion of the State's case. The defendants originally assigned nineteen errors, but have not briefed Assignment Nos. 5 or 16. These are therefore deemed abandoned. State v. Domingue, 298 So.2d 723 (La.1974).

FACTS

At approximately 9:45 a.m. on March 9, 1982, narcotics officer David Foy of the Arkansas State Police telephoned Deputy Toney of the Ouachita Parish Sheriff's Office. Foy advised Toney that a bright yellow 1977 Dodge van with Texas license plate number TJ 4947, containing over eight pounds of marijuana, would be arriving in the Monroe area in fifteen to twenty minutes. Foy further advised Toney that the van would be driven by a Mexican male named Jesus Ruiz, and provided a description of Ruiz. Foy stated that the van would eventually enter I-20, headed toward Texas. Foy further related that he had a reliable confidential informant who had personally observed the marijuana in the van. Moreover, Foy related he himself had followed the van to the Louisiana state line.

Deputy Toney directed that a broadcast be transmitted to all sheriff patrol units at approximately 11:10 a.m., instructing officers to be on the lookout for the described van. The broadcast instructed officers to stop the described van and detain it for Toney in connection with a drug investigation. At approximately 11:30 a.m., Deputy Donald Duncan stopped a van matching the description given and, upon being advised that Deputy Gary Telano was in the area, waited for Telano to join him. Approximately five minutes later, Deputy Duncan stopped the van, which was headed west on I-20, just inside Ouachita Parish. Officer Duncan asked the driver, defendant Ruiz, to get out of the van. Duncan confiscated an exposed hunting knife from Ruiz's belt and then conducted a "pat down" search. Duncan testified that Ruiz was not arrested at that time nor advised of his rights.

In the meantime, Deputy Telano had arrived. After being informed by Duncan that there was a passenger in the van, Telano asked the passenger, defendant Sweeney, to also disembark. Deputy Telano advised Sweeney that he was being detained by authority of narcotics officer Toney. Toney arrived shortly thereafter.

Upon Toney's arrival, he advised Sweeney of his rights, and stated that he understood marijuana was contained in the vehicle. Toney inquired as to the ownership of the vehicle and requested permission to search it. Sweeney refused to say who owned the van, and was evasive in his responses to Toney's questioning. At this point, Deputy Toney formally placed Sweeney under arrest and advised him of his rights. A search of Sweeney's person uncovered a bag of marijuana, a roach clip, a pipe, some pills, and a box of matches. Ruiz was also formally arrested and advised of his rights at that time. A search of Ruiz uncovered approximately $2,500.00 in cash, which was confiscated.

Subsequent to these events, Deputy Toney decided to transport the van to the metro narcotics unit in Monroe and obtain a search warrant. According to the testimony of Officer Telano, Sweeney, while en route to the jail, advised Telano that he wanted to speak with Deputy Marcus Clark who had been at the scene of the arrest.

Officers Clark and Toney testified that at approximately 3:00 p.m. that same afternoon, they went to Sweeney's cell, advised him of his Miranda rights, and subsequently interrogated him. According to the officers' testimony, they asked Sweeney how much marijuana was originally in the van, to which he replied that he had only given Ruiz a ride. The officers testified that Sweeney also told them that there had originally been three bags of marijuana, and that only one remained. Sweeney was apparently operating under the assumption that the deputies had already found the large bag of marijuana concealed in the van since, in response to Toney's question as to what the bag looked like, Sweeney replied with words to the effect, "Ya'll already have it." Toney conceded in his testimony that his response to that reply of Sweeney was to the effect, "I know, but what does it look like?" According to the officers' testimony, a search warrant was drafted after this interrogation.

A search warrant was signed by a district judge at 5:05 p.m. The search began at 5:20 p.m., and was completed at 5:45 p.m. During the course of the search, an animal feed bag full of marijuana weighing just under nine pounds was found in a cabinet in the van.

It was the testimony of the officers that they returned to the jail after the search and interviewed both defendants. A rights waiver form was signed by Sweeney at 6:14 p.m.

The testimony of defendant Sweeney differed in significant respects from that of Officers Toney and Clark. Sweeney denied ever asking to speak with Deputy Clark. He denied being interrogated by police officers at 3:00 p.m. in the afternoon, and insisted that he was questioned later in the afternoon at some time after 5:30 p.m., at which time he was not advised of his Miranda rights. Sweeney insisted, moreover, that at the time of his interrogation he obtained a copy of the search warrant from the officers, attached to which was a "return" invoice from the search. The clear import of Sweeney's testimony was that the jail cell interrogation occurred only after the search had been conducted.

Excessive Sentences Assignment of Error No. 1

By this assignment, defendant Ruiz complains of his sentence of two and one-half years at hard labor, and defendant Sweeney complains of his sentence of one and one-half years at hard labor--the maximum possible imprisonment for each defendant being ten years at hard labor. LSA-R.S. 40:966. In sentencing Ruiz, the trial judge noted that the 29-year old defendant was married, had a five-year old daughter, and had served three and one-half years in the United States Marine Corps before being discharged for medical reasons. He had completed three semesters of college education and was employed as a truck driver, hauling produce. He supported his parents. Furthermore, the judge noted, Ruiz had a fairly steady employment history, and no previous criminal record.

In sentencing Sweeney, the trial judge noted that the defendant was 26 years old, single, had received two years of college education, and had worked in the oil fields for approximately two years. The judge further noted that Sweeney was attempting to re-enroll in college, and was engaged in oil field work when arrested. The judge also noted a shoplifting conviction in 1976.

In passing sentence, the court concluded that the defendants' conduct caused serious harm, that there was no strong provocation therefor, and that a lesser sentence would deprecate the seriousness of the offense. He also noted that the defendants were likely to commit more crime if placed on probation and, therefore, were in need of custodial confinement. The judge was apparently motivated by the quantity of marijuana seized, by the fact that a great deal more had apparently already been distributed, and by the large sum of money involved. The court further noted Sweeney's lesser involvement in the aborted distribution scheme.

Because of the amount of marijuana seized and the amount which had apparently been previously distributed, these sentences are not grossly out of proportion to the severity of the crime; moreover, these sentences constitute a measurable contribution to the goals of deterrence and retribution. State v. Telsee, 425 So.2d 1251 (La.1983). These sentences compare favorably to others having a similar factual basis. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Jenkins, 419 So.2d 463 (La.1982); State v. McDonald, 414 So.2d 735 (La.1982).

This assignment of error lacks merit.

Bruton Violation Assignment of Error No. 2

The defendant Ruiz complains under this assignment that in this joint trial an oral statement of his co-defendant Sweeney--which was made to Deputy Toney and implicated Ruiz--was admitted contrary to Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton held that the admission of a statement of a codefendant which implicates the other codefendant, violates the implicated codefendant's right of confrontation, where the codefendant making the statement does not take the stand.

While the United States Supreme Court has not to our knowledge addressed this precise issue, the Federal Courts of Appeal have made it clear that Bruton is inapplicable to bench trials. "The core of Bruton is that the admission of [the confessing defendant's statement] against the confessing defendant is tantamount to its admission against his codefendant because the jury will ignore the limitation in deciding the issue of the nonconfessing defendant's guilt or innocence." Cockrell v. Oberhauser, 413 F.2d 256, 258 (9th Cir.1969). It has thus been held that the Bruton rule does not apply in a bench trial because it is presumed that the judge is capable of applying the rule of limited admissibility and will consider the proffered statement...