State v. Smith

• Decision Date: 25 August 2009
• Docket Number: No. 09-KA-100.,09-KA-100.
• Citation: 20 So.3d 501
• Parties: STATE of Louisiana v. Sean SMITH.
• Court: Court of Appeal of Louisiana — District of US

20 So.3d 501

STATE of Louisiana v. Sean SMITH.

No. 09-KA-100.

Court of Appeal of Louisiana, Fifth Circuit.

August 25, 2009.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for State of Louisiana.

James D. "Buddy" Caldwell, Louisiana Attorney General, Mary E. Hunley, Assistant Attorney General, La. Department of Justice, Criminal Division, Baton Rouge, LA, for State of Louisiana.

Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.

FREDERICKA HOMBERG WICKER, Judge.

In this criminal proceeding, defendant/appellant Sean Smith appeals his possession with intent to distribute MDMA conviction and his 30-year habitual offender sentence. Mr. Smith assigned the following errors: (1) excessive sentence; (2) failure to comply with La.C.Cr.P. art. 894.1; (3) denial of motion to reconsider sentence; (4) in the alternative, if the motion to reconsider is deemed untimely, counsel was ineffective for failing to preserve the defendant's rights to object to the sentence; and, (5) unconstitutional non-unanimous jury verdict. Finding no merit to the assigned non-unanimous jury verdict error, we affirm the conviction. Upon finding sentencing error patent, however, we pretermit the defendant's remaining assigned sentencing errors, including ineffectiveness of counsel, vacate the habitual offender sentence, and remand for resentencing with instructions.

The state charged Mr. Smith by Bill of Information with possession with intent to distribute a controlled dangerous substance —MDMA,¹ in violation of the La. R.S. 40:966(A), allegedly occurring on November 3, 2007. The defendant was tried by a 12-person jury which found him guilty as charged. At a later date, the trial judge sentenced the defendant to 15 years of hard labor.² After sentencing, the state filed a bill of information alleging that the defendant was a second felony offender. After conferring with the defendant, defense counsel waived a reading of the bill and informed the court that the defendant was denying the allegations. A few months later, the trial court heard the habitual offender matter. The defendant did not testify at the hearing. At the conclusion of the hearing, the trial judge found the defendant to be a second felony offender. The trial judge vacated the 15year sentence and imposed a 30-year sentence without benefit of probation or suspension of sentence. The defendant orally noticed his intent to appeal. The defendant filed a pro se motion for reconsideration of the sentence, which the trial judge denied. This timely appeal followed.

FACTS

The defendant was arrested during the early morning hours of November 3, 2007 after he attempted to enter a nightclub located on Monroe Street in Gretna, Louisiana. Following a search incident to arrest, a bag containing 25 pills was seized from the defendant's pocket. A random sample of the pills tested positive for MDMA.

At trial, Officer Alton Savage, Jr., the arresting officer, and Thomas Mason, the security guard/doorman at the club, testified similarly to the events that lead to the arrest. On the other hand, the defendant presented a different version of the events through the testimony of Brandon Cockerham and Cliffton Boullt, who testified that they accompanied the defendant to the nightclub.

According to Officer Savage and Mr. Mason, the defendant created a disturbance during the course of a mandatory pat down required for entering the club. On the other hand, the defendant's witnesses testified that when the defendant was attempting to produce his identification, a fight erupted and everyone, including the defendant, was rushed out of the club. Officer Savage testified that to his knowledge there was no altercation occurring near his location at that time other than the incident with the defendant.

Officer Savage of the Gretna Police Department testified that while in uniform on November 3, 2007, he was working a paid detail at the Caesar's nightclub. Officer Savage stated a sign to the right of the main entrance doorway warned patrons that they were subject to a search. A photograph of the sign, which was introduced into evidence, states: "All persons and the objects in their possession are, upon entering site, subject to search. Entry constitutes consent to search."

Mr. Mason testified that in most instances, the written warning provided by the 8 × 10 white-laminated sign is also reinforced by a verbal warning that the patrons would be searched. Furthermore, Officer Savage stated that patrons have been verbally warned to leave contraband outside the club before entering. Mr. Boullt testified that he was aware that the patrons would be searched.

Officer Savage stated that everyone must walk through a metal detector, which is positioned upon entry to the main club entrance door and located after the warning sign. After walking through the metal detector, the patron is greeted by a person who conducts a frisk.

Mr. Mason explained that after the patrons proceed through the metal detector, they must approach him, provide identification and undergo a mandatory pat down for weapons. According to Officer Savage, there had been problems with narcotics and weapons at the club.

Mr. Mason testified that patrons line up outside the club. Officer Savage testified that approximately 50 to 60 patrons were waiting to enter the club at the time of the incident. According to Mr. Mason, five or six people were allowed between the front door and the metal detector.

Officer Savage testified that he was standing near the metal detector when he saw the defendant trigger a beep as the defendant walked through the metal detector. After the defendant produced his identification, the frisk took place. When Mr. Mason had patted down approximately half of the defendant's person, the defendant attempted to push Mr. Mason's hands away from the defendant's body. Mr. Mason asked the defendant to calm down. Officer Savage was approximately five to seven feet from Mr. Mason at the time Mr. Mason asked the defendant to calm down. When the defendant failed to calm down, Officer Savage instructed the defendant to calm down. When the defendant did not comply, the officer handcuffed and arrested the defendant for disturbing the peace. He arrested him because he created a disturbance in the midst of several patrons inside the entrance and he refused to allow the frisk. He read him his Miranda rights and conducted a search incident to arrest in the club's foyer. He recovered a clear plastic bag containing multi-colored pills from the defendant's front right pocket.

Mr. Mason and Officer Savage testified that the defendant produced his identification when Mr. Mason asked the defendant for the production. Mr. Mason stated that after the defendant produced his identification, Mr. Mason proceeded to conduct a pat down of the defendant's person. However, when Mr. Mason reached the defendant's pockets, the defendant pushed his hands away. After Mr. Mason told the defendant a search was required and inquired about the defendant's problem, the defendant replied that Mr. Mason did not have to search him in that manner. Mr. Mason and the defendant exchanged words. According to Mr. Mason, the defendant started to "cuss and get loud." Mr. Mason asked the defendant to calm down and he attempted to try the pat down once more. Officer Savage approached and inquired about the problem. The defendant replied that Mr. Mason did not have to check him in that fashion. Mr. Mason stated that Officer Savage told the defendant he had to be checked if he wanted to enter the club. In response, the defendant did not submit to being checked. Instead, he "made [a] scene" and was arrested. According to Mr. Mason, approximately four or five people were in line behind the defendant.

Lieutenant Daniel Jewell, Jr., an expert in the field of packaging, value and distribution of controlled dangerous substances, testified that he had over 240 hours of training in the field of narcotics. In addition, he has participated in over 1000 narcotics-related investigations, including several undercover operations. He stated that the three primary factors used to distinguish personal use of a drug from distribution are packaging, quantity, and value. Lieutenant Jewell interchangeably referred to the drug that was seized in this case as "Ecstasy" or "MDMA." He testified that MDMA tablets are occasionally individually wrapped, but at times unwrapped. With regard to the quantity of MDMA, he generally sees "very small amounts" for personal use. At most, a person could have three tablets for personal use. This is because a high from one tablet could last as long as 6-1/2 to 14 hours, depending on the person's tolerance and the percentage of MDMA in the tablet.

In this case, Officer Savage seized a clear plastic bag containing 25 multi-colored pills from the defendant's front pocket. At trial, Officer Savage identified State's Exhibit 2 as the package of pills that the officer recovered. Daniel Waguespack, the state's expert in testing and analysis of controlled dangerous substances, testified that he conducted an analysis of a randomly selected sample of the 25 pills.³ The tested sample indicated that the pills were composed of approximately 20% MDMA and 70% caffeine. Defense counsel asked Mr. Waguespack whether the remaining non-tested pills could have been vitamins or sugar pills. He replied that although he could not be "absolutely certain," he doubted that "very seriously."

Lieutenant Jewell testified that even if a person had a high tolerance to MDMA and the tablet contained a low quantity of MDMA, three tablets would be the most that a person would have to maintain the high on the drug. According to Lieutenant Jewell, MDMA sells for $15...