State v. Waguespack

• Court: Court of Appeal of Louisiana
• Writing for the Court: CRAIN
• Citation: State v. Waguespack, 589 So.2d 1079 (La. App. 1991)
• Decision Date: 18 October 1991
• Docket Number: No. KA,KA
• Parties: STATE of Louisiana v. Adrian C. WAGUESPACK. 90 1412. 589 So.2d 1079

Page 1079

589 So.2d 1079

STATE of Louisiana v. Adrian C. WAGUESPACK.

No. KA 90 1412.

589 So.2d 1079

Court of Appeal of Louisiana First Circuit.

Oct. 18, 1991.

Rehearing Denied Jan. 3, 1992.

Abbott Reeves, Asst. Dist. Atty., Donaldsonville, for appellee State of La.

James J. Zito, Baton Rouge, for appellant Adrian C. Waguespack.

Before SHORTESS, LANIER and CRAIN, JJ.

CRAIN, Judge.

Adrian C. Waguespack originally was indicted for distribution of cocaine. Pursuant to plea negotiations, the state amended the charge to conspiracy to possess with intent to distribute cocaine, a violation of La.R.S. 40:967(A)(1) and 14:26. ¹ The state also dismissed seven other indictments. Defendant then pled guilty to the amended indictment. Before being sentenced, defendant filed a motion to withdraw his guilty plea. After receiving evidence on the motion, the trial court denied it and sentenced defendant to serve a term of seven years imprisonment at hard labor with credit for time served.

Defendant has appealed, urging error by the trial court in four assignments of error: (1) denial of motion to withdraw guilty plea; (2) denial of opportunity to introduce evidence at sentencing hearing; (3) imposition of excessive sentence and failure to follow the sentencing guidelines; and (4) withdrawal of sentence of intensive incarceration.

Because defendant pled guilty to the instant offense, the facts were not fully developed. The amended indictment alleges that, on October 16, 1988, defendant conspired with Larry Boudreaux to possess with intent to distribute less than one ounce of cocaine. The facts revealed at the guilty plea indicate that Larry Boudreaux called defendant and asked defendant if he could secure cocaine for Boudreaux. Defendant agreed and made a phone call. Because of previous dealings with Boudreaux, defendant assumed Boudreaux would distribute the cocaine to other people.

DENIAL OF MOTION TO WITHDRAW GUILTY PLEA

In the first assignment of error, defendant claims the trial court erred when it denied defendant's motion to withdraw guilty plea. Defendant specifically claims that had he known at the time of his guilty plea that a key state witness had recanted statements about defendant previously given to the authorities, he would not have pled guilty. Defendant complains that the state's intentional failure to disclose this exculpatory evidence was in violation of the state's obligations under the discovery provisions and should result in his guilty plea being set aside.

Prior to sentencing, defendant filed the motion to withdraw guilty plea. At the hearing held on the motion, defendant introduced the indictments and defense motions from the eight indictments with which defendant originally was charged. In each case, defendant had filed a discovery motion requesting inspection of tangible evidence favorable to defendant. Although the state's responses to these discovery motions were not introduced at the hearing, the assistant district attorney testified that he allowed defendant to view all of the evidence in the state's possession, pursuant to an "open file" discovery, and that in court, on August 22, 1989, he indicated on the record that the state had no evidence favorable to defendant. ²

In connection with these discovery responses and open file discovery, the state allowed defendant to view a videotape (D-3) filmed in late 1988 at a hotel in New Orleans. Defendant introduced the tape at the hearing. It shows Steven Fontenot, Pat Rizzuto, and an undercover agent ("Tony") from the United States Drug Enforcement Agency discussing the possibility of a drug deal whereby "Tony" would sell ten to twelve kilograms of cocaine to defendant. On tape, Steven Fontenot implied that he had defendant's authority to inquire into the possible deal; however Fontenot also made it clear several times that he had no authority to actually enter into a deal on defendant's behalf, or to determine a particular price, at least at that time. He explained that defendant was not sure he wanted to enter into a deal with "Tony." Fontenot also stated that he did not want to be the middleman; he implied that he was not being paid anything by defendant. Eventually, all Fontenot agreed to do was to relay information to defendant. At the hearing, the assistant district attorney testified that he recalled having told defendant and defendant's attorney, during the plea negotiations, that the videotape could be used as the basis for additional prosecutions.

Also in connection with discovery, the state allowed defendant to view transcripts (D-2, S-1) of statements Steven Fontenot had made on February 23-24, 1989, to narcotics agents from the Ascension Parish Sheriff's Office and the assistant district attorney concerning defendant's involvement in the drug trade. In these lengthy statements, Fontenot provided information about two separate drug transactions potentially involving defendant: the New Orleans meeting with the D.E.A. agent (caught on videotape) in which Fontenot implied that he had defendant's authority and a deal in Memphis wherein defendant assisted a Memphis purchaser in contacting a Louisiana supplier/deliverer.

After the guilty plea, defendant contacted Steven Fontenot. At that time, Fontenot told defendant that some of the statements he had given to the authorities were not truthful. At the hearing, Fontenot testified that the implication he gave on the undercover videotape, that he was acting on behalf of defendant in New Orleans, was not true. He explained that defendant never asked him to go to New Orleans and that he went to New Orleans only because his roommate, Pat Rizzuto, would make money if Pat could get someone to deal with "Tony." Fontenot also explained that the reason he told the authorities during his statements, in February of 1989, that he had defendant's authority was that he was confused and tired of the questioning. Fontenot testified that, eight to ten days before he appeared before the grand jury, he told Lt. Jack Crittenden that some of the statements he made about defendant were untrue. He also told Lt. Crittenden that, at the time of his statement in February of 1989, he had been using drugs and was confused.

At the hearing, Lt. Crittenden, the Ascension Parish Sheriff's Office Narcotics Detective who handled defendant's cases, admitted that, in a brief meeting, Fontenot told him "that he felt in his heart that he wasn't an agent for [defendant] when he went to New Orleans." He also acknowledged that Fontenot stated that he was "messed up" when he gave the statements. Lt. Crittenden did not provide the assistant district attorney with the information about Fontenot's so-called "recantation"; and, thus, this information was not provided to the defense in a supplement to discovery responses.

In a written judgment, the trial court denied defendant's motion. The court rejected defendant's argument that the statements given by Steven Fontenot and the videotape were extremely damaging pieces of evidence and that Fontenot's subsequent statements to Lt. Crittenden contradicted the contents of the videotape and transcribed statements, thus making the subsequent statements rise to the level of exculpatory evidence which was unlawfully withheld. The court concluded that many of the statements made by Fontenot in Exhibit S-1 (which was provided to the defense) were exculpatory, rather than damaging, and, as a result, Fontenot's subsequent statements to Lt. Crittenden were not of "great import." The court also was convinced that defendant would not have changed his mind about pleading guilty had he been aware of the undisclosed evidence.

On appeal, defendant alleges that he would not have pled guilty had he known that Fontenot specifically recanted his statements that he had defendant's authority and called into question all of his statements by volunteering that he was under the influence of drugs at the time he made the transcribed statements. Defendant basically argues that, because the state violated its obligation to supplement its responses to discovery and because defendant relied on these inaccurate factual assertions, the error vitiates defendant's consent to the plea bargain agreement. As a result, the guilty plea should be set aside.

A trial court may permit the withdrawal of a guilty plea at any time before sentencing. La.C.Cr.P. art. 559(A). The court's decision is discretionary, subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Hebert, 506 So.2d 863, 865 (La.App. 1st Cir.1987). Even after sentencing, if a trial court finds "either that a plea of guilty was not entered freely and voluntarily or that the Boykin colloquy was inadequate, and that the plea, therefore, is constitutionally infirm, the Trial Court retains the authority to vacate the sentence and set aside the plea." State v. Lewis, 421 So.2d 224, 226 (La.1982).

A defendant may not withdraw a guilty plea simply because the sentence to be imposed is heavier than anticipated. It is not unreasonable for a trial court to deny a defendant the luxury of gambling on his sentence, then withdrawing his plea if and when he discovers, before imposition, the sentence is not to his liking. State v. Banks, 457 So.2d 1264, 1266 (La.App. 1st Cir.1984) (citing State v. Deakle, 372 So.2d 1221 (La.1979)).

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilty or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). In United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985), the United States Supreme Court established the following test for materiality:

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ...