APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 509-658, SECTION " J" . HONORABLE DARRYL A. DERBIGNY, JUDGE.
LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY OF ORLEANS PARISH, SCOTT G. VINCENT, ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH, New Orleans, Louisiana, Counsel for State of Louisiana.
CHRISTOPHER J. MURELL, ORLEANS PUBLIC DEFENDERS, New Orleans, Louisiana -and- THOMAS M. NOSEWICZ, JR., Pro Hac Vice, New York, New York, Counsel for Defendant/Appellant.
(Court composed of Chief Judge James F. McKay III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins). JENKINS, J., CONCURS AND ASSIGNS REASONS.
JAMES F. MCKAY III,
[2013-1133 La.App. 4 Cir. 1] Finding that the trial court committed reversible error in denying the appellant's statutory right to back strike jurors we reverse the appellant's conviction, vacate his sentence and remand the matter to the trial court for a new trial. See La. C.Cr.P. art. 799.1
STATEMENT OF CASE
On December 2, 2011, the State charged Raymond Frith (" defendant" ) with one count of possession of a firearm by a felon (count 1), a violation of La. R.S. 14:95.1, and one count of possession with intent to distribute cocaine (count 2), a violation of La. R.S. 40:967. The defendant pled not guilty to both charges at his arraignment on December 8, 2011.
On January 13, 2012, the trial court denied the defense motion to suppress the evidence and found probable cause to hold the defendant for trial. On September 10, 2012, the trial court denied the defendant's motion to suppress the identification.
[2013-1133 La.App. 4 Cir. 2] On August 1, 2012, the State filed a Prieur  notice notifying the defense of its intent to introduce evidence of the defendant's three prior convictions -- a 2007 conviction for distribution of cocaine; a 2008 conviction for possession with intent to distribute cocaine; and a 2009 conviction for attempted possession of a firearm by a felon. On August 14, 2012, the trial court ruled that the State's Prieur notice was sufficient. The defendant sought supervisory review of that ruling, and this Court denied the writ in part, affirming the trial court's ruling admitting evidence of the defendant's 2007 and 2008 drug
convictions but granted the writ as to the defendant's 2009 conviction for attempted possession of a firearm by a felon, ruling that that conviction " [was] not relevant to the issue of whether [defendant] possessed a firearm in the instant matter."
On November 2, 2012, the defendant filed a motion to sever offenses, which the trial court denied that day.
Trial in this matter began on November 4, 2012, and concluded on November 11, 2012, with the jury finding the defendant guilty as charged on both counts.
On November 29, 2012, the defendant filed motions for post-verdict judgment of acquittal and for new trial, both of which were denied on December 11, 2012.
On December 12, 2012, the trial court sentenced the defendant to fifteen years on count 1 and to twenty-five years on count 2. That same day, the State filed a multiple bill charging the defendant as a double offender as to count 1and a triple offender as to count 2. The defendant pled guilty to the multiple-bill. The [2013-1133 La.App. 4 Cir. 3] trial judge vacated the defendant's original sentences and resentenced him as a double offender as to count 1to fifteen years at hard labor and to life at hard labor as a third offender as to count 2, with credit for time served. This timely appeal followed.
STATEMENT OF FACT
While patrolling in a marked vehicle, in the early morning hours of October 29, 2006, Detective Rob Barrere of the New Orleans Police Department (" NOPD" ) Sixth District Investigative Unit observed a gray Maxima run a stop sign at the intersection of Second and Danneel Streets. Detective Barrere and his partner initiated a traffic stop, and as the car pulled over, Detective Barrere illuminated the interior of the vehicle for officer safety. When he ordered the Maxima's three occupants to exit the vehicle, the back seat passenger quickly ducked down to the floorboard, clutched something with his hand and reached behind his back. Detective Barrere opened the door and observed the defendant stuffing a clear plastic bag, containing what Detective Barrere suspected was cocaine, down the back of his pants. Detective Barrere immediately restrained the defendant, removed him from the vehicle, handcuffed him and placed him under arrest. Thereafter, Detective Barrere searched the defendant and discovered in the back of the defendant's pants a clear plastic bag containing twenty-one individually wrapped pieces of an off-white, rock-like substance, which Detective Barrere recognized from experience as crack cocaine. In addition, the detective retrieved $260.00 from the defendant's left front pants pocket. Neither the driver of the Maxima, Lester Jones, nor the front seat passenger, Ronald Catchen, was arrested. Detective Barrere identified the bag of individually wrapped packages of cocaine he seized from the defendant that night.
[2013-1133 La.App. 4 Cir. 4] On March 22, 2007, Detective Derrick Burke of the New Orleans Police Department (" NOPD" ) Major Case Narcotics Unit was conducting a buy/bust operation, in a vehicle equipped with audio and video recording systems, targeting the known narcotics trafficking area in the 1300 block of South Saratoga Street. The NOPD photocopied currency to keep track of the serial numbers and provided the currency to Detective Burke to facilitate a purchase during the operation. As Detective Burke drove through the targeted area, he encountered a black female, who asked him what he wanted. He told her that he wanted a couple of " dimes", street slang for $10.00 pieces of crack cocaine. She called to " Ray", whom Detective Burke later learned was the defendant, Raymond Firth. The defendant placed the crack cocaine in her hand, which she handed to
Detective Burke in exchange for one of the photocopied $20.00 bills. The woman gave the money to the defendant, who then walked into the residence at 1327 South Saratoga Street. As the defendant exited the residence, Detective Burke radioed the take down team a description of the defendant's clothing and location. The team moved in and placed the defendant under arrest. Immediately thereafter, Detective Burke drove by the location and positively identified the defendant. Detective Burke identified the compact disc containing the audio and video record of the transaction he had just described. The disc, which was played for the jury, bore case number C-24559 of 2007. Additionally, Detective Burke identified the plastic bag, bearing police item number C2455907, containing the two pieces of crack cocaine he purchased from the defendant, pictures taken of the defendant wearing a black bandana and the test kit, which confirmed that the substance was crack cocaine. Detective Burke explained that based upon his experience, different drug dealers have different [2013-1133 La.App. 4 Cir. 5] " stash spots", hidden locations where drug dealers keep their drugs, to prevent the police from finding the contraband on the drug dealer's person.
NOPD Officer Joseph Pollard testified by stipulation as an expert in the field of the identification, analysis and comparison of latent fingerprints. Officer Pollard testified that he fingerprinted the defendant prior to trial and identified the card containing those fingerprints (State's Exhibit 8).
Officer Pollard identified a certified fingerprint card (State's Exhibit 9) in the defendant's name relative to an October 29, 2006, arrest. He compared State's Exhibit 9 to State's Exhibit 8 and concluded that the fingerprints on those exhibits matched one another. He then identified a cert. pack under case No. 477-041, G, which included a bill of information containing fingerprints, a plea of guilty form, minute entry, screening and action form, fact sheet, gist of a police report and a docket master (State's Exhibit 10). Officer Pollard compared the fingerprints on State's Exhibit 8 to the fingerprints on the bill of information contained in Exhibit 10 and concluded that both sets of fingerprints were identical, and that they belonged to the defendant.
Next, Officer Pollard examined fingerprints (State's Exhibit 11) relative to a March 22, 2007, arrest. Officer Pollard's comparison of the fingerprints on State's Exhibit 8 with the fingerprints relative to the March 2007 arrest concluded that the prints were identical on both exhibits.
Then, Officer Pollard identified the court record (State's Exhibit 12) for case No. 470-102, Section " G", which included a bill of information (State's Exhibit 13) bearing the defendant's name and fingerprints. The charge listed on the bill was unlawful distribution of cocaine. Officer Pollard noted that the exhibit also included a Boykin form bearing the defendant's name. Officer Pollard compared [2013-1133 La.App. 4 Cir. 6] the fingerprints on the back of the bill of information to those on State's Exhibit 8, and found that the fingerprints were identical, and that the prints belonged to the defendant.
Mr. Glenn Gilyot, civilian expert in the identification of controlled dangerous substances, tested the evidence in this case, under Item No. J 41343-11, which bore the defendant's name, to determine whether the substance was in fact cocaine. He documented his testing results in his crime lab report. Gilyot tested two specimens from the first package which contained seventy-three small individually wrapped plastic packets. Those specimens tested positive for cocaine. He tested a second bag which contained two large slabs of a
rock-like substance. The slabs also proved to be cocaine.
In October 2011, Detective Leonard Standeford received information from an anonymous concerned citizen regarding illegal narcotics activity at St. Andrew and South Liberty Streets. On October 27, 2011, at about 3:30 p.m., Detective Standeford set up surveillance from a position with an unobstructed view of a house in the 2300 block of St. Andrew Street. Through use of binoculars, Detective Standeford observed the defendant walk from South Liberty Street through an alley to the rear of the house at 2300-2304 St. Andrew Street and access a " stash spot", a small hole under the house. The defendant appeared to be nervous--constantly looking over his shoulders, making sure no one was behind him. Detective Standeford identified a picture of the " stash spot" he was referring to. Detective Standeford watched the defendant retrieve a plastic bag, which contained several pieces of a rock-like substance, from the " stash spot" under the house. The defendant removed several pieces of the substance, placed them in his [2013-1133 La.App. 4 Cir. 7] mouth and walked out of the alley to the street and out of Detective Sandeford's line of vision. Detective Sandeford relayed his observation of the defendant's behavior and description -- black male wearing a black T-shirt, blue jeans with a short haircut and thin build - to the " take down" team consisting of Detectives Hinrichs, Ory and Black, who arrested the defendant. Thereafter, Detective Standeford maintained his surveillance of the house and directed Detective Hinrichs to the " stash spot," from which Detective Hinrichs confiscated two plastic bags and a firearm.
Detective Standeford relocated to the Sixth District Station, where he positively identified the defendant. Lastly, Detective Standeford made an in-court identification of the defendant as the man he observed accessing the contraband from the rear of the house on St. Andrew Street. Moreover, he identified the firearm he watched Detective Hinrichs retrieve from the " stash spot" .
Detectives Kyle Hinrichs, Nicholas Ory and Troy Black testified, corroborating Detective Standeford's testimony.
Detective Hinrichs identified the bags of cocaine he removed from the " stash spot" and the loaded .45 caliber weapon found with the bags of cocaine.
Detectives Ory and Black added that in addition to apprehending the defendant, they detained two men who were with the defendant -- Joshua Bradford and Rodney Carr. Detective Ory noted that the three men were wearing different clothing so it was easy to spot the defendant. Detective Ory ...