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APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 508-956, SECTION " G" . Honorable Julian A. Parker, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals/Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA.
Adam B. Beckman, Martin E. Regan, Jr., Nisha Sandhu, Regan & Sandhu, P.L.C., New Orleans, LA, COUNSEL FOR DEFENDANT/ APPELLANT.
(Court composed of Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Madeleine M. Landrieu). BELSOME, J., DISSENTS WITH REASONS.
[2014-0215 La.App. 4 Cir. 1]
PAUL A. BONIN, JUDGE.
Doretha Mosby appeals her conviction for the willful and unlawful distribution of cocaine, a controlled dangerous substance. First, contending that no rational trier of fact could have found that she engaged in a narcotics transaction, Ms. Mosby requests a Jackson v. Virginia review for sufficiency of evidence and, as her remedy, seeks the reversal of her conviction and an acquittal. Second, Ms. Mosby claims entitlement to have her conviction reversed and a new trial ordered to be undertaken
because of her trial counsel's constitutionally ineffective assistance in which counsel failed to move to sever her trial from that of her codefendant, Ronnie Palmore. And third, Ms. Mosby contends that the thirty-year minimum sentence imposed upon her as a fourth felony offender under the Habitual Offender Law is unconstitutionally excessive.
Having reviewed Ms. Mosby's claim for sufficiency of evidence under the well-known Jackson v. Virginia standard, we are satisfied that any rational trier of fact, considering the uncontradicted testimonies of the police detectives, could have found beyond a reasonable doubt that Ms. Mosby distributed cocaine to Mr. Palmore. Turning next to her ineffective-assistance-of-counsel claim, we find the record insufficiently developed for our review and reserve Ms. Mosby's right to [2014-0215 La.App. 4 Cir. 2] subsequently raise this claim through an application for post-conviction relief. Finally, after reviewing the presentence investigation report and the transcripts of the original sentencing and multiple bill hearings, we conclude that the sentencing judge did not abuse his considerable discretion by imposing the minimum sentence permitted under the Habitual Offender Law. We accordingly affirm Ms. Mosby's conviction and sentence.
We explain below our reasoning for each holding.
In this Part we explain our holding that the detectives' uncontradicted testimonies at trial were sufficient such that any rational trier of fact could have found beyond a reasonable doubt that Ms. Mosby distributed cocaine.
We first consider the essential elements of the offense for which Ms. Mosby has been convicted--distribution of cocaine.
La. R.S. 40:967(A)(1) punishes the knowing or intentional distribution of controlled dangerous substances statutorily-classified in " Schedule II." See La. R.S. 40:967(A)(1). Cocaine is included in this statutory classification. See La. R.S. 40:964(A)(4). " Distribution" includes, inter alia, the " physical delivery" of a controlled dangerous substance to another. See La. R.S. 40:961(14). See also State in the Interest of C.D., 11-1701, p. 10 (La. 7/2/12), 93 So.3d 1272, 1278 (quoting State v. Celestine, 95-1393, p. 3 (La. 1/26/96), 671 So.2d 896, 897) (" [I]n narcotics cases, distribution is 'defined as the delivery or transfer of possession and control over controlled substances.'" ) (internal quotations omitted). Thus, the essential elements of this offense, which the prosecution must prove beyond a reasonable doubt at trial, are: " (1) delivery or physical transfer; (2) guilty [2014-0215 La.App. 4 Cir. 3] knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance." State v. Johnson, 01-1455, p. 5 (La.App. 4 Cir. 5/29/02), 825 So.2d 1230, 1233.
We turn now to a consideration of the trial evidence.
Detective Rafael Dobard testified that, on the afternoon of September 21, 2014, he was conducting surveillance of the 3800 block of Texas Drive in New Orleans, an area known for narcotics trafficking, prior to the execution of two search warrants in an unrelated matter. Detective Dobard, dressed in plain clothes and sitting inside an unmarked police unit, observed a vehicle, driven by Mr. Palmore, enter the parking area of an apartment complex. He then watched Ms. Mosby exit an apartment and join
Mr. Palmore inside of the vehicle. Detective Dobard stated that he had an unobstructed view into the front of the vehicle using binoculars. A short conversation ensued between Ms. Mosby and Mr. Palmore. Detective Dobard then witnessed a hand-to-hand transaction during which Mr. Palmore handed money to Ms. Mosby in exchange for an unknown object. Mr. Palmore, immediately after receiving the object, raised his body off of the seat and hid the unknown object in his underwear. Ms. Mosby then exited the vehicle and returned to the apartment from which she had previously emerged; Mr. Palmore drove away.
Detective Dobard, from his extensive experience with narcotics investigations, became suspicious that the transaction involved drugs when Mr. Palmore hid the unknown object in his underwear. In response, Detective Dobard, via radio, alerted the " take-down" unit assigned to assist his surveillance, which included Detectives Quincy Jones, Wesley Humbles, and Corey Foy in two marked [2014-0215 La.App. 4 Cir. 4] police units. Detective Dobard indicated that an investigative stop of Mr. Palmore should occur, explained the events he had just witnessed, and described the vehicle and Mr. Palmore as well as his direction of travel.
The " take-down" unit located Mr. Palmore shortly thereafter and began to follow his vehicle. Detective Jones testified that Mr. Palmore then disregarded a street sign and was stopped shortly thereafter. After a brief investigation, Detective Jones discovered that Mr. Palmore had two outstanding arrest warrants and was driving with a suspended driver's license. Mr. Palmore was then arrested and searched incident to that arrest by Detective Humbles. Seven pieces of crack cocaine in a plastic bag were discovered in Mr. Palmore's underwear. Detectives Foy and Humbles confirmed this information in their testimonies.
Following the arrest of Mr. Palmore, Detective Dobard testified that he went to the apartment in which Ms. Mosby had previously entered. An unknown female answered the door; Detective Dobard could see Ms. Mosby sitting on a sofa. Detective Dobard requested that Ms. Mosby exit the apartment, advised her of her Miranda rights, and placed her under arrest for distribution of cocaine. Detective Dobard then asked whether Ms. Mosby was in possession of any contraband; Ms. Mosby responded by removing what Detective Dobard recognized as a " crack pipe" from her brassiere and handing the ...