[Copyrighted Material Omitted]
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 508-269, SECTION " K" . Honorable Arthur Hunter, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.
Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano.
Joy Cossich Lobrano, J.
[2014-0579 La.App. 4 Cir. 1] Defendant, Cornell B. Cavalier, appeals his conviction of attempted possession of cocaine and subsequent adjudication as a third felony offender, for which he received a ten-year sentence. For reasons that follow, we affirm Defendant's conviction, vacate his sentence, and remand to the trial court for resentencing.
On August 23, 2011, the State of Louisiana charged Defendant with possession of cocaine, in violation of La. R.S. 40:967(C)(2), and charged Derrick Slade with possession of drug paraphernalia. On September 7, 2011, the State entered a nolle prosequi on the charge against Slade. On December 12, 2011, the court found probable cause to substantiate the charge against Defendant and denied his motion to suppress the evidence.
On July 10, 2013, Defendant filed a pro se motion to dismiss, which the trial court denied. On September 27, 2013, the Louisiana Supreme Court denied Defendant's request for supervisory review.
[2014-0579 La.App. 4 Cir. 2] On October 4, 2013, Defendant was found guilty of attempted possession of cocaine, after a bench trial. On October 23, 2013, the defense filed post-trial motions for new trial and for post-verdict judgment of acquittal. That same day, the State filed a multiple bill charging Defendant as a third felony offender.
On October 24, 2013, the post-trial motions were considered " moot" as per a court minute entry. The trial judge then sentenced Defendant to two years hard labor for attempted possession of cocaine. That same day, following the trial on the multiple offender bill, the trial judge vacated Defendant's two-year sentence and resentenced him as a double offender to ten years with credit for time served to run concurrently with any other sentence.
On March 21, 2014, Defendant filed a pro se application for post-conviction relief requesting an out-of-time appeal, which the trial court granted on March 25, 2014. Defendant's appeal was lodged in this Court on June 4, 2014.
By order dated August 13, 2014, this Court ordered the trial judge to rule on Defendant's motions for post-verdict judgment of acquittal and new trial. The following day, the trial court denied those motions. Pursuant to Defendant's request, this Court sent him the record, and he subsequently filed a pro se brief.
FACTUAL BACKGROUND AND TRIAL TESTIMONY
New Orleans Police Department (" NOPD" ) Detective
Sherife Davis testified at trial that he was conducting a pro-active walking patrol of the Iberville Housing Project on April 7, 2011, and he observed " Cookie", Slade, and Defendant enter an apartment building at 1423 Bienville. Det. Davis followed the [2014-0579 La.App. 4 Cir. 3] three subjects. When Det. Davis opened the hallway door, he saw Slade exit an apartment that Det. Davis knew to be vacant. Det. Davis explained that he knew the vacant apartment had been used for drugs and other criminal activity and that there were clearly marked signs indicating " No Trespassing." Det. Davis arrested Slade and called the Housing Authority of New Orleans (" HANO" ) Security and the NOPD for backup. Det. Davis searched Slade and seized a crack pipe. Shortly thereafter, Det. Davis saw Defendant exit the same vacant apartment. When Defendant saw Det. Davis, he became nervous and attempted to enter the occupied apartment across the hall, but the door was locked. Det. Davis arrested Defendant and Slade and issued a citation for criminal trespass on HANO property. Det. Davis also advised the Defendant of his Miranda rights. Defendant then voluntarily told Det. Davis that he was only in the apartment to get his jacket, which was on his arm. Incident to the arrest, Det. Davis searched Defendant and recovered a bag of what he suspected was cocaine from Defendant's jacket right pocket.
Slade testified that he was with Defendant at the Iberville Housing Project on April 7, 2011. When Slade walked out of the abandoned apartment, he encountered Det. Davis, who arrested him and discovered drug paraphernalia on him. Slade confirmed that Det. Davis patted Defendant down and recovered cocaine and added that he and Defendant had earlier shared Defendant's cocaine in the vacant apartment.
Defendant testified that on the day he was arrested he was in the Iberville Housing Project on his way to retrieve his jacket from the apartment occupied by Ms. Bonanza Johnson. Upon exiting Ms. Johnson's apartment, he was stopped by [2014-0579 La.App. 4 Cir. 4] Det. Davis. Det. Davis searched Defendant's jacket and pulled out a packet of cocaine. Defendant denied any knowledge of or connection to the cocaine.
At trial, the State was allowed to offer into evidence the crime lab report of Analyst William Giblin which verified that the substance seized from Defendant was cocaine. The State informed the court that it filed its " Notice of Intent to Offer Into Evidence the State's Criminalist Report as Prima Facie Proof pursuant to La. R.S. 15:499 et seq." and that there had been " no objection filed to that notice." Defense counsel objected to the lab report being admitted without the accompanying testimony of the analyst, noting only that she was not counsel of record at the time the State filed its notice of intent.
[2014-0579 La.App. 4 Cir. 5] Defendant, through counsel, assigns one error: The trial court erred in allowing the State to introduce the crime lab report of Analyst Giblin, in violation of Defendant's Sixth Amendment right under the Confrontation Clause to confront his accusers. Defendant also filed a pro se brief, assigning three errors, the first of which is duplicative of counsel's first assignment of error: (1) that his right to confrontation was violated by the admission of the crime lab report; (2) that he was denied a fair trial when the trial court released a witness without defense counsel's assent; and, (3) that the trial court erred by denying his motion to suppress.
COUNSEL ASSIGNMENT OF ERROR PRO SE ASSIGNMENT OF ERROR NUMBER 1
In Defendant's counseled and pro se assignment of error number one, he asserts that the trial court erred by allowing the State to introduce the analyst's crime lab report, over objection by the defense, because a defense demand for the analyst to testify had, in fact, been properly made pursuant to La. R.S. 15:499-502 entitled " Evidence from Criminalistics Laboratories" (" Louisiana's notice-and-demand statutes" ). Defendant argues that the admission of the analyst's lab report without cross-examination of the analyst was in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution.
The State argues that it complied with the statutory requirements of Louisiana's notice-and-demand statutes when it filed its notice of its intent to offer into evidence at trial the analyst's report as prima facie proof that the seized substance was cocaine and received no objection from the defense. Although the State acknowledges that the record indicates that the defense filed a demand for the analyst to testify at trial, it maintains that because the defense filed its demand for testimony prior to the State filing its notice, the defense failed to comply with the mandates of Louisiana's notice-and-demand statutes; thus, the trial court did not err in allowing the lab report, rather than the testimony of the analyst, at trial. Based upon the record before this Court, we find that Defendant waived his Sixth Amendment right of confrontation by failing to comply with the time limits and procedures set forth in Louisiana's notice-and-demand statutes. The record evidences that the State was not properly served with Defendant's demand for testimony after the State's notice of intent was filed.
" The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant 'to be confronted with the witnesses against him.' The United States Supreme Court has held that this guarantee, which is extended to the States [2014-0579 La.App. 4 Cir. 6] by the Fourteenth Amendment, includes the right to cross-examine witnesses." State v. Collins, 2010-0757, p. 21 (La.App. 4 Cir. 5/11/11), 65 So.3d 271, 285-86 (quoting Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 1717, 95 L.Ed.2d 162 (1987)).
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment acts as an absolute bar on the admission of all out-of-court testimonial evidence unless (1) the witness who made the statement is unavailable to testify in court, and (2) the defendant had a prior opportunity to cross-examine the witness. Id. at 68, 124 S.Ct. at 1374. An analyst's report and certification regarding forensic evidence is considered a testimonial statement and is subject to confrontation clause requirements because it was " 'made under circumstances which would
lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009), citing Crawford, 541 U.S. at 52, 124 S.Ct. 1354. If a report and certification are presented as evidence, then the person who is called for testimony and cross-examination on the evidence must have conducted or observed the tests on which the report and certification are based. Bullcoming v. New Mexico, 564 U.S.
__, 131 S.Ct. 2705, 2714, 180 L.Ed.2d 610 (2011).
In Melendez-Diaz, the United States Supreme Court recognized that some states have notice-and-demand statutes that do not violate the Confrontation Clause because they do not shift the burden to the defendant to call the testing analyst to trial. 557 U.S. at 326-27, 129 S.Ct. at 2541. The Louisiana Supreme Court has held that Louisiana's notice-and-demand statutes are such notice-and-demand [2014-0579 La.App. 4 Cir. 7] statutes. State v. Cunningham, 2004-2200, p. 17 (La. ...