State v. Walker, 32,342-KA.

• Decision Date: 24 September 1999
• Docket Number: No. 32,342-KA.,32,342-KA.
• Citation: 747 So.2d 133
• Parties: STATE of Louisiana, Appellee, v. Jerry WALKER, Jr., Appellant.
• Court: Court of Appeal of Louisiana — District of US

747 So.2d 133

STATE of Louisiana, Appellee, v. Jerry WALKER, Jr., Appellant.

No. 32,342-KA.

Court of Appeal of Louisiana, Second Circuit.

September 24, 1999.

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Louisiana Appellate Project by Amy E. Ellender, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Catherine Estopinal, Assistant District Attorney, Counsel for Appellee.

Before STEWART, CARAWAY and DREW, JJ.

STEWART, J.

The defendant, Jerry Walker, Jr., appeals his conviction and sentence of life imprisonment for the crime of one count of possession of a Schedule II controlled dangerous substance ("CDS"), a violation of La. R.S. 40:967(C). The trial court imposed the life sentence after adjudicating the defendant a fourth felony offender. For the reasons set forth herein, we affirm the defendant's conviction, but we vacate his adjudication as a fourth felony offender and the sentence imposed by the trial court and remand for further proceedings.

FACTS

While patrolling the 1300 block of Oak-dale Street in the Hollywood Heights area of Shreveport, Louisiana, Officer Mike Greber ("Officer Greber") of the Shreveport Police Department ("SPD") observed two individuals sitting in a small truck parked on private property next to a condemned house. The SPD had an "entering and remaining" letter from the property owner which granted SPD permission to enforce no trespassing on the property. Additionally, the area was considered an extremely high crime area noted for drug sales, drug use and prostitution. Officer Greber parked his vehicle so as to block the truck. He then approached the truck and told the occupants to exit. Neither individual complied. Officer Greber then drew his weapon, pointed it at the windshield of the truck between the two occupants, and again told them to exit the vehicle. The two individuals exited the vehicle, and Officer Greber told them to get on the ground. The individual who exited from the driver's side obeyed the command. Officer Greber recognized that individual, Royce Jones, from previous drug charges and traffic stops. Officer Greber recalled that Jones had sustained severe brain damage from injuries received when he was a victim of a robbery and knew Jones to be docile and nonviolent toward the police.

The defendant was the second occupant of the truck. Officer Greber did not recognize him. The defendant exited the truck with his pants down almost to his knees and with an object that appeared to be either a screwdriver or a crack pipe in his left hand. Officer Greber noticed a little flash fall to the ground as the defendant exited the vehicle. After a third command, the defendant got on the ground. Officer Greber approached the defendant and cuffed his right hand. The defendant then dropped a crack pipe from his left hand before that hand was cuffed. Officer Greber seized the crack pipe and placed the defendant in the patrol car after arresting him and reading his Miranda rights. In the meantime, Officer Michael Blackmon ("Officer Blackmon") had arrived and was assisting with Jones who had half a dime bag of marijuana in his underwear. Officer Blackmon observed the defendant holding a crack pipe in his left hand while on the ground prior to being cuffed. After placing the defendant in the patrol car, Officer Greber returned to the passenger side of the truck where the defendant had exited and found a dime bag containing a $10.00 rock of crack cocaine on the ground by the passenger's door of the truck.

In addition to the crack pipe and the bag containing the rock of crack, a Marlboro Lights box containing marijuana was found on the dashboard of the truck. The defendant told Officer Greber that the marijuana was his but that the crack was not. The defendant also told Officer Greber that Jones had been masturbating him and offered to turn in to Officer Greber a "big dealer" if he did not arrest him for possessing the crack. When Officer Greber informed the defendant that he would have to speak to someone in the drug bureau about his offer, the defendant made threats against Officer Greber, his partner, and his family.

Meanwhile, Officer Blackmon assisted with Jones. Jones informed Officer Blackmon that he had been masturbating the defendant in exchange for the crack cocaine. Officer Blackmon explained at trial that prostitution in exchange for drugs is common in the area where the arrest occurred. According to Officer Blackmon, when a person with illegal narcotics enters a deal with another to perform a sexual act in exchange for the narcotics, the act is performed before the drugs are exchanged.

Both the crack pipe and the dime bag seized at the scene of the arrest were analyzed for drug content. At trial, Randall Robillard of the North Louisiana Crime Lab testified that the plastic dime bag contained cocaine and that the crack pipe contained cocaine residue.

Prior to trial, the defendant filed an untimely motion to suppress the evidence seized at the crime scene. The trial court deferred the motion to the merits of the case and subsequently denied the motion. The jury returned a verdict of guilty as charged of one count of possession of cocaine, a Schedule II CDS, in violation of La. R.S. 40:967(C). Thereafter, the state filed a habitual offender bill of information. The trial court then adjudicated the defendant to be a fourth felony offender and imposed the maximum sentence of life imprisonment without benefit. The defendant now appeals urging five assignments of error.

DISCUSSION

Sufficiency of the Evidence

The defendant argues that the evidence presented at trial was not sufficient to support his conviction for possession of cocaine. The defendant specifically argues that the evidence was not sufficient to establish that he knowingly and intentionally possessed cocaine.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.E d.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Bellamy, 599 So.2d 326 (La.App. 2^nd Cir.1992), writ denied, 605 So.2d 1089 (La.1992). The Jackson standard applies in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence claim must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence 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. Lott, 535 So.2d 963 (La.App. 2^nd Cir.1988).

La. R.S. 40:967(C) provides, in pertinent part:

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.

Thus, to convict the defendant for possession of cocaine, the state must prove that the defendant was in possession of the CDS and that he knowingly or intentionally possessed the CDS.

Possession of a CDS may be established by showing that the defendant exercised either actual or constructive possession of the substance. State v. Keys, 29,369 (La.App. 2^nd Cir. 5/7/97), 694 So.2d 1107, writ denied, 97-1497 (La.10/31/97), 703 So.2d 21; State v. Lias, 28,091 (La. App. 2^nd Cir. 5/8/96), 674 So.2d 1044. "Actual possession" means having an object in one's possession or on one's person in such a way as to have direct physical contact with and control of the object. State v. Keys, supra; State v. Perez, 569 So.2d 609 (La.App. 2^nd Cir.1990), writ denied, 575 So.2d 365 (La.1991). "Constructive possession" means the object is subject to one's dominion and control and one has knowledge of its existence. State v. Alford, 323 So.2d 788 (La.1975); State v. Lias, supra.

Guilty knowledge is an essential element of the crime of possession of illegal drugs, and such knowledge may be inferred from the circumstances. State v. Lias, supra; State v. Riley, 587 So.2d 130 (La.App. 2^nd Cir.1991). The determination of whether there is possession of cocaine sufficient to convict depends on the facts peculiar to each case. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Ferrell, 25,851 (La.App. 2^ndCir. 3/30/94), 634 So.2d 977.

The facts of this case show that both Officers Greber and Blackmon observed the defendant holding a crack pipe in his left hand. The crack pipe later tested positive for cocaine residue. Officer Greber also testified that he observed a small flash fall from the person of the defendant as he exited the vehicle. Officer Greber searched the area and retrieved the plastic dime bag from the ground by the passenger's side of the truck from which the defendant had exited. This plastic dime bag contained cocaine. In addition to the items seized, there was testimony that the incident occurred in a high crime area known for drug activity and prostitution. There was also testimony indicating that Officer Greber interrupted a drug transaction involving a sexual act. Statements made to that effect are strongly supported by Officer Greber's testimony that the defendant exited the vehicle with his pants down below his knees.

After hearing the evidence, the jury made a rational determination that the defendant was in possession of the cocaine found in the plastic dime bag and the cocaine residue found in the crack pipe and that...