State v. Wade

• Decision Date: 23 October 2002
• Docket Number: No. 36,295-KA.,36,295-KA.
• Citation: 832 So.2d 977
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Carlos Dewayne WADE, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

832 So.2d 977

STATE of Louisiana, Plaintiff-Appellee, v. Carlos Dewayne WADE, Defendant-Appellant.

No. 36,295-KA.

Court of Appeal of Louisiana, Second Circuit.

October 23, 2002.

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Peggy J. Sullivan, Monroe, Carlos Dewayne Wade, for Defendant-Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Edward M. Brossette, Assistant District Attorney, for Appellee.

Before CARAWAY, DREW and HARRISON (Pro Tempore), JJ.

HARRISON, Judge Pro Tempore.

The defendant, Carlos Dewayne Wade, was found guilty of possession of a Schedule II controlled dangerous substance, cocaine, with the intent to distribute, La. R.S. 40:967 A(1), and of flight from an officer, La. R.S. 14:108.1 A. He was then adjudicated a third felony offender and sentenced to the mandatory life at hard labor without benefit of parole, probation or suspension of sentence, as provided by La. R.S. 15:529.1 A(1)(b)(ii) at the time of the offense. Wade now appeals, raising five assignments of error. We affirm.

Factual background

Shortly before 1:00 a.m. on July 7, 2000, Officer J.T. Redstone of the Shreveport Police Department was on tactical patrol on Youree Drive. He saw a white Lincoln Continental speeding north on Youree, going well over the posted 50 mph limit. Redstone turned around and followed the Lincoln, which made a right on East 70th St. and headed east. Redstone was joined by officers W.W. Lindsey and Robert Morman, all of whom activated their lights and sirens; on East 70th, Redstone paced the Lincoln at 70 mph. The Lincoln did not stop, but crossed the Jimmy Davis bridge into Bossier Parish and turned south on U.S. Hwy. 71. All three officers saw the Lincoln pass a car on the bridge, cross the double yellow center line on Hwy. 71 several times, and force other vehicles off the road. After eight to 12 minutes of chase, the Lincoln pulled off the side of Hwy. 71. Officer Redstone removed the driver, Wade, from the car, advised him of his rights and handcuffed him. The entire chase was captured on videotape by cameras mounted in Redstone and Morman's police cars.

Officer Redstone turned away to secure the Lincoln, which was rolling into the ditch. He was unable to stop the car. Meanwhile, Officer Lindsey patted down Wade and found in his front pocket a clear plastic Ziplok Baggie. This contained seven smaller green baggies, each of which held a large white rock that appeared to be crack cocaine. The officers could not recall if there was also a cell phone, pager or any cash on Wade's person.

The substance field-tested positive for cocaine. Laboratory analysis confirmed that the substance was cocaine; a forensic chemist testified that the baggies and their contents weighed 9.2 grams. Agent Michael Tong, supervisor for the midlevel narcotics unit, testified as an expert in the street level interdiction of cocaine. He explained that the difference between a user of crack cocaine and a distributor is the amount seized, and other paraphernalia. On the street level, crack is usually sold in "dime bags" that contain 0.10 g and sell for $10; the crack seized from Wade appeared to be packaged in $100 bags of about 1 g each, and worth about $1,000 total. He said this was "not a personal use amount of cocaine," but would normally be cut into $10 rocks for distribution. Agent Tong further testified that the recent trend is for dealers to keep their money away from their cocaine, but he agreed that most dealers carry a cell phone or pager, and a weapon. He added that a user would normally be carrying a crack pipe.

The State charged Wade with possession of a Schedule II CDS, cocaine, with intent to distribute, and with aggravated flight from an officer. Wade filed a motion to suppress the evidence seized as a result of the stop; this was denied, and the ruling is not challenged on appeal. The matter proceeded to trial in late August 2001. During jury selection, the State raised a "reverse Batson" claim, urging that Wade had used his peremptory challenges to strike only white prospective jurors from the panel. The District Court found that the State made a prima facie case of discrimination and that Wade failed to provide race-neutral reasons for striking two of the jurors. Those two served on the jury.

At trial, the State's witnesses testified as to the facts and expert opinions outlined above. The defense presented no evidence. The jury found Wade guilty as charged of possession of a Schedule II CDS, cocaine, with intent to distribute, and of flight from an officer.

The State then filed a habitual offender bill, charging Wade as a fourth felony offender. The bill listed Wade's guilty pleas to possession of a firearm by a convicted felon in 1992, armed robbery in 1995, and possession of a Schedule II CDS in 1999. At the hearing, the State noted that R.S. 15:529.1 had been amended in June 2001, but urged the court to apply the version in effect at the time of the offense. The State offered the bills of information and minutes for the 1995 and 1999 convictions; an expert testified that the fingerprints in those records were Wade's. The court adjudicated Wade a third felony offender.

At sentencing in December 2001, the court ruled that it would apply the version of the habitual offender statute in effect at the time of the offense. The court therefore imposed the mandatory life sentence at hard labor, without benefit of probation, parole or suspension of sentence. Wade filed a motion to reconsider, urging that he should receive the benefit of the more lenient version of R.S. 15:529.1 enacted in 2001. The court denied the motion, and this appeal followed.

Discussion: Sufficiency of the evidence

By his first assignment of error, Wade urges that the evidence was insufficient to convict him of possession of cocaine with the intent to distribute. He contends that applying the factors of State v. Hearold, 603 So.2d 731 (La.1992), a rational jury could find him guilty of only simple possession. The State maintains that the quantity of cocaine and the manner of packaging proves the intent to distribute beyond a reasonable doubt.

When issues are raised on appeal both as to the sufficiency of the evidence and other trial error, the reviewing court first determines the sufficiency of the evidence. This is because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all elements of the offense were proved beyond a reasonable doubt. State v. Hearold, supra; State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied 97-1203 (La.10/17/97), 701 So.2d 1333. The Jackson standard applies in cases involving both direct and circumstantial evidence. An appellate court reviewing the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the State. When the direct evidence is thus viewed, the facts established by the direct evidence and those inferred from the circumstances must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Owens, 30,903 (La.App. 2 Cir. 9/25/98), 719 So.2d 610, writ denied 98-2723 (La.2/5/99), 737 So.2d 747.

Appellate review for sufficiency does not extend to credibility determinations made by the trier of fact. La. Const. Art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2 Cir.1984). The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27. Absent internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2 Cir. 5/8/96), 674 So.2d 1018, writ denied 98-0282 (La.6/26/98), 719 So.2d 1048.

To support the conviction for possession of CDS with the intent to distribute, the State must prove that the defendant knowingly and intentionally possessed the CDS and did so with the intent to distribute it. La. R.S. 40:967 A(1); State v. Smith, 94-1502 (La.App. 4 Cir. 1/19/95), 649 So.2d 1078. Specific intent may be established by circumstances which give rise to a reasonable inference of intent to distribute. State v. Ramoin, 410 So.2d 1010 (La.1981). Factors useful in this determination include whether the defendant ever distributed or attempted to distribute the drug, whether the drug was in a form usually associated with possession for distribution to others, whether the amount of the drug created an inference of intent to distribute, whether expert or other testimony established that the amount of drug found in the defendant's possession is inconsistent with personal use only, and whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute. State v. Hearold, supra; State v. House, 325 So.2d 222 (La.1975). Of course, quantity alone may be sufficient to establish the intent to distribute. State v. Hearold, supra; State v. Ratliff, 35,144 (La.App. 2 Cir. 9/26/01), 796 So.2d 101.

As noted, Wade was carrying in his front pocket seven individually wrapped rocks of crack cocaine with a total weight of 9.2 g. Agent Tong, an expert in street level interdiction, testified that this was not a "personal use amount," and explained each $100 rock would likely be divided into dime bags. This testimony alone is sufficient to prove intent to distribute. Wade seeks to minimize Agent Tong's testimony but offered no reason, at trial or on appeal, to reject his opinion. Wade also...