ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 13-1560, DIVISION " P" . HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, ANDREA F. LONG, DAVID B. WHEELER, SCHWANNAH MCCARTHY, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR THE STATE OF LOUISIANA.
PEGGY J. SULLIVAN, ATTORNEY AT LAW, Monroe, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg. WICKER, J., CONCURS WITH REASONS.
HANS J. LILJEBERG,
[14-453 La.App. 5 Cir. 2] Defendant, Brandon Robinson, appeals his convictions and sentences for two counts of distribution of cocaine. For the following reasons, we affirm defendant's convictions, vacate his sentences, and remand the matter to the trial court for further proceedings.
On April 24, 2013, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant, Brandon Robinson, with two counts of distribution of cocaine, in violation of La. R.S. 40:967(A).
Defendant pled not guilty at arraignment and thereafter filed several pre-trial motions. Trial was held on February 18 and 19, 2014, at the conclusion of which he was found guilty as charged on both counts.
[14-453 La.App. 5 Cir. 3] On March 12, 2014, defendant was sentenced to ten years with the Department of Corrections on each count, to run concurrently, without the benefit of probation, parole or suspension of sentence for the first two years of each sentence. The State filed a multiple bill of information alleging defendant to be a third felony offender, to which defendant stipulated. At that time, the trial court vacated defendant's original sentence on count one and resentenced him to 15 years at hard labor without the benefit of parole, probation, or suspension of sentence, to run concurrently with the sentence imposed on count two. Thereafter, the court granted defendant's motion for appeal and took up defendant's motion for new trial, which was denied. On May 27, 2014, defendant's enhanced sentence on count one was vacated, as the trial court found that it was illegally lenient, and the court resentenced defendant under the provisions of La. R.S. 15:529.1 to 20 years at hard labor. Defendant appeals.
In November and December of 2012, the Kenner Police Department was conducting a narcotics investigation, known as a " video buy operation," under circumstances where a confidential informant (CI) works together with an undercover officer. Typically, the CI would introduce the undercover officer, who was wired with a camera, to the individual being targeted. An exchange of money for drugs would be made and then the CI and officer would leave the area. One of the targets of this investigation was defendant, Brandon Robinson.
At trial, Detective Travis Thomas testified that he is employed by the St. John Parish Sheriff's Office, and he works in the Narcotics Bureau. In November and December of 2012, Thomas was assigned to work in an undercover capacity [14-453 La.App. 5 Cir. 4] with the Kenner Police Department for the purpose of making narcotics purchases from known " drug violators" in the area.
On November 20, 2012, Thomas participated in a narcotics transaction that ultimately led to defendant's arrest. At trial, the detective recounted how he rode with a CI who had made a phone call to defendant in order to arrange the purchase of one hundred dollars worth of crack cocaine. Following the phone call, the CI told Thomas where to go in the undercover police vehicle, which was equipped with video cameras and an audio recording device. Ultimately, Thomas and the CI met with defendant at a location in the 300 block of Duke Street in Kenner. When they arrived at the location, Thomas observed " a black male subject wearing a light colored sweater, jeans, and a baseball cap." At that time, the CI recognized defendant and informed Thomas that the individual was Brandon Robinson. Thomas had never seen defendant prior to that day. Defendant motioned for Thomas to drive a little further down the road. Defendant then approached the front passenger's side window of the undercover vehicle and a brief conversation ensued between the CI and defendant. At that time, defendant reached through the front passenger window and handed Thomas the crack cocaine. In turn,
Thomas handed defendant one hundred dollars. The transaction was captured on the video system in the undercover car, and the video was shown to the jury at trial.
Detective Robert Wimberly, who was the case agent for the investigation on November 20, 2012, prepared a photographic lineup of six photos, including a photo of defendant. Thomas identified defendant from the lineup as the individual who sold him the crack cocaine on November 20, 2012.
Detective Thomas further testified that he encountered defendant a second time during the Kenner Police Department's undercover investigation, on December 10, 2012, when Thomas participated in another purchase of narcotics. [14-453 La.App. 5 Cir. 5] Thomas explained that, using the same CI from his previous purchase from defendant, a meeting was arranged at an apartment complex on Clemson St. Upon arrival at approximately 4:16 p.m., an individual later identified as defendant motioned for Thomas to walk in the alleyway between two apartments. Defendant told Thomas that he " left the stuff on the window sill." At that time, Thomas continued to walk toward defendant, and defendant then turned and began to walk away before stopping and pointing at ...