State v. Smith

• Court: Court of Appeal of Louisiana
• Writing for the Court: WINDHORST, J.
• Citation: State v. Smith, 379 So.3d 206 (La. App. 2023)
• Docket Number: 23-KA-263
• Decision Date: 27 December 2023
• Parties: STATE of Louisiana v. Eric SMITH

379 So.3d 206

23-263 (La.App. 5 Cir. 12/27/23)

STATE of Louisiana

v.Eric SMITH

NO. 23-KA-263

Court of Appeal of Louisiana, Fifth Circuit.

December 27, 2023

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT. COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 20-5249, DIVISION "C", HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Conniek, Jr., Metairie, Thomas J. Butler, Shreveport, Andrea F. Long, Gretna, LaShanda Webb

COUNSEL FOR DEFENDANT/APPELLANT, ERIC SMITH, Prentice L. White

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst

WINDHORST, J.

₁In this case, defendant/appellant, Eric Smith, appeals his convictions and sentences for possession of heroin weighing 2 to 27.9 grams in violation of La. R.S. 40:966 C (count two), and possession of cocaine weighing less than 2 grams in violation of La. R.S. 40:967 C (count three). For the following reasons, we affirm defendant’s convictions, vacate his sentences, and remand for resentencing.

PROCEDURAL HISTORY

On October 2, 2020, the Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Smith, with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one), possession of heroin weighing 2 to 27.9 grams in violation of La. R.S. 40:966 C (count two), and possession of cocaine weighing less than 2 grams in violation of La. R.S. 40:967 C (count three). Defendant pled not guilty at his arraignment.

On June 16, 2022, the State filed a notice pursuant to La. C.Cr.P. art. 719, informing the court and defendant that it intended to call Mr. Michael Cole to testify as to the controlled substance analysis of the brown and white powder like substances, which constitute evidence in this case. Defendant objected to the scientific analysis report to the extent the controlled substance analysis indicated that drugs other than heroin and cocaine were detected in the substances found on defendant. Defendant argued that the report should be redacted to exclude reference to these other drugs. The trial court denied defendant’s request.

On June 21, 2022, the jury trial commenced, and on the following day, a twelve-person jury unanimously found defendant not guilty as to possession of a firearm by a convicted felon (count one) and guilty as charged for both possession of heroin weighing 2 to 27.9 grams (count two) and possession of cocaine weighing less than 2 grams (count three).

₂On July 6, 2022, defendant filed a motion for new trial, alleging that the court erred in admitting the scientific analysis report into evidence without the redaction of the reference to fentanyl. Defendant argued that the verdicts on counts two and three were contrary to the law and evidence, and that a new trial was warranted. On the same date, defendant also filed a motion for post-verdict judgment of acquittal. The trial court denied both the motion for new trial and the motion for post-verdict judgment of acquittal.

On August 18, 2022, the trial court sentenced defendant to five years imprisonment at hard labor for possession of heroin (count two) and two years imprisonment at hard labor for possession of cocaine (count three),, concurrent with each count and "concurrently with any other sentence with credit for all time served from the date of arrest." The court also ordered defendant to pay "costs, fines, and fees in accordance with the cost, fine, and fee sheet." The trial court stated that a hearing on defendant’s ability to pay would be set one year after defendant’s release from the Department of Corrections.

On December 7, 2022, the State filed a multiple offender bill of information for possession of heroin weighing 2 to 27.9 grams (count two), alleging defendant was a second-felony offender, previously convicted of possession of heroin in violation of La. R.S. 40:966 C on March 22, 2019. Defendant stipulated to being a second-felony offender. The trial court vacated defendant’s previous sentence for count two, and sentenced defendant to five years imprisonment at hard labor without the benefit of probation or suspension of sentence as a second felony offender. The trial court ordered that defendant would be responsible for all court costs, fines, and fees, and that the court would hold an ability to pay hearing upon defendant’s release from the Department of Corrections.

Defendant now appeals, asserting that the trial court erred in, denying the defense’s request to redact the scientific analysis report.

₃JURISDICTIONAL ISSUE

[1] Defendant’s motion for appeal was untimely filed because he filed his motion for appeal on November 3, 2022, more than thirty days after the initial sentencing on August 18, 2022.¹ The trial court, however, granted the motion for appeal on November 15, 2022. Although it was untimely, the record does not reflect that the State objected to defendant’s motion for appeal. Moreover, we find it fruitless to forestall this appeal until post conviction relief, wherein it is likely that defendant would qualify for a Counterman² out of time appeal.

This court has previously addressed the merits of an appeal, despite the fact that defendant’s motion for appeal was untimely, in the interest of judicial economy and to avoid useless delay. State v. Lane, 20-137 (La. App. 5 Cir. 12/23/20), 309 So.3d 886, 893-94, writ denied, 21-100 (La. 4/27/21), 314 So.3d 836. See also, State v. Jones, 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713, 716 (despite defendant’s untimely motion to reconsider sentence and motion for appeal, this court addressed the merits of the appeal in the interest of judicial economy); State v. Babineaux, 08-705 (La. App. 5 Cir. 1/13/09), 8 So.3d 621, 623. Therefore, in the interest of judicial economy and the avoidance of useless delay, we will consider the merits of this appeal.

EVIDENCE

At trial, Officer Christopher Washington, of the Kenner Police Department, testified that, on July 6, 2020, he stopped defendant in a Ford Expedition at a Circle K on Williams Boulevard in Kenner, Louisiana, because defendant’s vehicle matched the description of a vehicle that had been identified as leaving the scene of a simple criminal damage complaint nearby on East Loyola Drive. After stopping the vehicle, defendant hopped out of his vehicle and took off running southbound on Williams ₄Boulevard. Officer Washington said he briefly pursued defendant on foot, stopped him, and arrested him.

Officer Washington testified that he searched the vehicle for inventory, and found a black bag containing a firearm on the passenger’s side of the vehicle. After Officer Washington searched defendant’s vehicle, it was towed.

Officer Fabian Varela with the Kenner Police Department testified that on July 6, 2020, he searched defendant at the Kenner jail during the "booking" process, and discovered a black bag under defendant’s pants on the right leg. The black bag contained narcotics wrapped in smaller clear plastic bags.

Officer Michael Cole, who was previously employed with the Jefferson Parish Sheriff's Office Crime Lab as a forensic chemist, testified that he analyzed the controlled dangerous substances that were found on defendant and prepared a scientific analysis report identifying the results of the controlled substances analysis.³ The scientific analysis report indicates that six sealed plastic bags were analyzed for controlled substances, and the results regarding the six individual bags were as follows: (1) methamphetamine; (2) methadone; (3) heroin and fentanyl; (4) cocaine; (5) heroin and methadone; and (6) heroin. At trial, Mr. Cole testified as to the findings set forth in the scientific analysis report.

Defendant testified at trial that on July 6, 2020, he was stopping at the gas station to pick up cigarettes when the police stopped him. He said he ran from the police because something did not feel right and people were getting killed by cops. Defendant said several officers, including Officer Washington, searched him, and he was already in Kenner jail when the Ford Expedition was being searched. Defendant denied knowing what was inside the bag found in the Ford Expedition, and he denied seeing the gun before the day of trial. He also denied having drugs under his pants.

₅LAW and ANALYSIS

Defendant argues that the introduction of the scientific analysis report, without the redaction of fentanyl and methadone, amounted to the erroneous introduction of other crimes evidence. The State responds that the evidence formed part of the res gestae in this case because all of the drugs were possessed contemporaneously.

[2–4] Generally, a court may not admit evidence of other crimes to show a defendant is a person of bad character, and that he has acted in conformity with his bad character. State v. Napoleon, 12-749 (La. App. 5 Cir. 5/16/13), 119 So.3d 238, 242. The State, however, may introduce evidence of other crimes, wrongs, or acts if it establishes an independent and relevant reason for its admissibility, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. Id.; La. C.E. art. 404 B(1). Such evidence is also admissible when it relates to conduct that constitutes an integral part of- the act or transaction that is the subject of the present proceeding. La. C.E. art. 404 B(1).

[5–7] Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. State v. Maize, 16-575 (La. App. 5 Cir. 6/15/17), 223 So.3d 633, 648-49, writ denied, 17-1265 (La. 4/27/18), 241 So.3d 306; State v. Napoleon, 119 So.3d at 242. Close connexity in time and location is required between the charged and uncharged conduct to ensure that "the purpose served by admission of the other crimes evidence is not to depict the defendant as a bad man, but rather...