State v. Washington
| Decision Date | 21 March 2001 |
| Docket Number | No. 99-KA-1111.,99-KA-1111. |
| Citation | 788 So.2d 477 |
| Parties | STATE of Louisiana v. Paul WASHINGTON. |
| Court | Court of Appeal of Louisiana — District of US |
Harry F. Connick, District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for plaintiff/appellee.
Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for defendant/appellant.
BEFORE: BYRNES, III, Chief Judge, and PLOTKIN and TOBIAS, Jr., JJ.
Defendant Paul Washington was charged by grand jury indictment on January 22, 1998, with possession with intent to distribute heroin, a violation of La.R.S. 40:966(A)(1). Defendant pleaded not guilty at his January 27, 1998 arraignment. On September 15, 1998, the trial court granted a motion in limine filed by the State, and denied defendant's motion in limine. On the same day, defendant was tried by a twelve-person jury and found guilty as charged. The trial court denied defendant's motions for new trial and post verdict judgment of acquittal on December 4, 1998. After defendant waived legal delays, he was sentenced to life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. The trial court denied defendant's motion to reconsider sentence, and granted his oral motion for appeal.
New Orleans Police Crime Laboratory Criminalist Theresa Lamb was qualified by stipulation as an expert in the chemical analysis of controlled dangerous substances. Ms. Lamb tested the white powder in one individual foil packet and four of twenty-four packets packaged in a key case. All of the samples tested positive for the presence of heroin.
New Orleans Police Sergeant Bryan Lampard testified that at approximately 3:30 p.m. on November 20, 1997, as he was driving in his personal car en route to the Second District station, he observed defendant leaning into the passenger-side window of a Ford Taurus parked at the corner of Valence and Magazine Streets. Defendant was manipulating something inside of the car. As the uniformed officer drew near, defendant looked at him, appeared startled, and immediately withdrew from the Taurus and walked to a nearby grocery store. Officer Lampard continued on several blocks to his district station, and subsequently went on duty. Some two hours later, after he and his partner answered several service calls, they drove to the area where Officer Lampard had observed defendant. The Taurus was parked in the same location. Officer Lampard observed defendant standing nearby with another male. The second male had his hand outstretched, and defendant attempted to hand that male an object. Officer Lampard, who testified that he knew the area as a "high narcotics area," stated that at that point he believed he was witnessing a narcotics transaction. Upon seeing the officers, defendant appeared startled. Defendant balled up his right fist and began walking in the direction of a grocery store and the nearby Taurus. The second male turned and began walking away in the opposite direction from defendant. The officers stopped defendant and, aware of the connection between narcotics and weapons, decided to frisk him for weapons. As defendant stepped toward the police car in compliance with the officers' directives, he discarded one foil packet to the ground. Officer Scott Knight, Officer Lampard's police recruit partner, recognized this as consistent with narcotics. Officer Knight retrieved the packet and opened it to find a white powder, which he recognized as heroin. Defendant was then advised of his rights and placed under arrest. Officer Lampard said he decided not to pursue the second individual because his police recruit partner had only been on the street for six weeks, and he did not want to leave him with a possibly armed suspect. Officer Lampard said that because he had previously seen defendant leaning inside of the Ford Taurus manipulating something, he suspected that defendant had his main "stash" inside of the vehicle. Officer Lampard entered the vehicle. Inside the console, he discovered a loaded .45 caliber semi-automatic pistol and a magnetic "hide-a-key" box containing numerous foil packets of heroin consistent with the one defendant had discarded. Officer Lampard identified the gun and the total of twenty-five packets of heroin recovered that day. After defendant had been arrested and advised of his rights, he told the officers he was selling the heroin for "Bo," and said that it was Bo's car. The car was registered to Rainbow-Rent-a-Car, but the rental contract found in the vehicle was for a van.
Officer Lampard admitted on cross examination that when he initially saw defendant leaning into the car, defendant's hands were out of the officer's view. He also admitted that he could not identify the object he later saw defendant attempt to transfer to the other male. Officer Lampard did not request either that the gun or the magnetic key box be checked for fingerprints. The officer could not recall whether defendant had a valid driver's license on his person when arrested. Officer Lampard stated that he took defendant to the Second District police station several blocks away after he was arrested. When it was discovered that the car rental contract found in the car did not match the car, Officer Lampard returned to the scene, but the car was gone. He found no money on defendant's person. Officer Lampard said on redirect examination that the defendant was the only person he had seen leaning into the Taurus.
New Orleans Police Officer Scott Knight testified that when he saw defendant he looked like he was handing something to a black male who had his hand out as if to receive something. Upon seeing the officers, defendant retracted his hand, turned away from them, and started to walk away. They stopped defendant and ordered him to put his hands on the police car. As defendant was raising his hands, he opened his right one, and a small foil object hit the ground. He handcuffed defendant and retrieved the object, which he believed to contain heroin. Defendant was placed under arrest, and Officer Lampard entered the passenger side of a white Ford Taurus and found the gun and magnetic key box containing twenty-four packets of heroin. He said defendant later claimed that he was selling heroin for "Bo."
A review of the record reveals what would seem to be one error patent. Defendant was convicted of possession with intent to distribute heroin, and was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. La.R.S. 40:966(B)(1) provides that the penalty for this offense is life imprisonment at hard labor without benefit of probation or suspension of sentence. Courts have for years held that the denial of parole to a defendant sentenced to life imprisonment under this statute is an error patent. See State v. Marks, 337 So.2d 1177, 1180, n. 1 (La.1976); State v. Jones, 559 So.2d 892, 893 (La.App. 4 Cir. 1990). However, in Richardson v. La. Dept. of Public Safety & Corrections, 627 So.2d 635 (La.1993), the Louisiana Supreme Court concluded that it was not error for a trial court to deny the benefit of parole to a defendant sentenced pursuant to the same statutory provision, because under La. 15:574.4(B) a defendant sentenced to life imprisonment is not eligible for parole until his life sentence is commuted to a fixed number of years. In affirming the sentence imposed without the benefit of parole, the court noted that parole eligibility could not be considered until the defendant's life sentence was commuted to a fixed number of years. In adherence to Richardson, supra, there is no reversible error in the trial court's denying defendant the benefit of parole.
In this assignment of error, defendant claims the trial court erred in denying his motion to suppress the evidence.
Warrantless searches and seizures fail to meet constitutional requisites unless they fall within one of the narrow exceptions to the warrant requirement. State v. Edwards, 97-1797, p. 11 (La.7/2/99), 750 So.2d 893, 901, cert. denied, Edwards v. Louisiana, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). On trial of a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Jones, 97-2217, p. 10 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 395, writ denied, 99-1702 (La.11/5/99), 751 So.2d 234. A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the court has the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Mims, 98-2572, p. 3 (La.App. 4 Cir. 9/22/99), 752 So.2d 192, 193-194. In reviewing a trial court's ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider any pertinent evidence given at trial of the case. State v. Nogess, 98-0670, p. 11 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 137.
La. C.Cr.P. art. 215(A) provides that:
A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
"Reasonable suspicion" to stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect's rights. State v. Littles, 98-2517, p. 3 (La.App. 4 Cir. 9/15/99), 742 So.2d 735, 737; State v. Clay, 97-2858, p. 4 (La.App. 4 Cir. 3/17/99), 731 So.2d 414, 417, writ denied, 99-0969 (La.9/17/99...
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