APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 499-519, SECTION " H" . Honorable Camille Buras, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Christopher J. Ponoroff, New Orleans, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.
Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, Marrero, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet. LOMBARD, J., CONCURS IN THE RESULT).
Rosemary Ledet, J.
[2015-0017 La.App. 4 Cir. 1] In this criminal appeal, the defendant, Novell Campbell, seeks review of his conviction and sentence for possession with intent to distribute cocaine, in violation of La. R.S. 40:967 A(1). For the reasons that
follow, we affirm his conviction and sentence.
STATEMENT OF THE CASE
On August 17, 2010, Mr. Campbell was charged by bill of indictment with one count of possession with intent to distribute cocaine. On August 30, 2010, Mr. Campbell was arraigned and pled not guilty. On November 18, 2010, Mr. Campbell filed various motions, including a motion to suppress evidence. On January 28, 2011, the district court denied the motion to suppress. On March 7, 2012, a jury trial commenced. On the following day, the jury found Mr. Campbell guilty as charged.
On April 5, 2013, the State filed a multiple bill, charging Mr. Campbell as a third felony offender. On April 12, 2013, Mr. Campbell filed motions for new trial and for post-verdict judgment of acquittal. Thereafter, he was appointed new [2015-0017 La.App. 4 Cir. 2] counsel. On February 4, 2014, his new counsel filed a motion for new trial. On April 16, 2014, Mr. Campbell filed a motion to quash the multiple bill, which the district court denied on April 23, 2014. On that same date, a hearing was held on the multiple bill; and the district court adjudicated Mr. Campbell a third felony offender. On March 11, 2014, the district court denied Mr. Campbell's motion for new trial based on the showing made.
On May 22, 2014, the district court conducted a sentencing hearing. The district court denied Mr. Campbell's motion seeking a downward departure from the statutory minimum sentence and sentenced him to twenty years at hard labor for this offense. The district court then vacated that sentence and re-sentenced Mr. Campbell as a third felony offender to twenty years at hard labor with the first two years to be served without benefit of parole. This appeal followed.
STATEMENT OF THE FACTS
On August 12, 2010, New Orleans Police Department (" NOPD" ) Detective Harry Stovall was assigned to the Second District Narcotics unit. On that date, he executed a search warrant for 1438 Joliet Street in New Orleans, Louisiana. Detective Stovall described the structure on the Joliet Street property as a fenced, single family residence with a backyard containing a shed, which had been converted into a bedroom. The search warrant for the Joliet Street property was obtained based on information provided by a confidential informant. The confidential informant provided the NOPD with a tip that an individual known as " Novell" (later identified as Mr. Campbell) was selling narcotics from that address. [2015-0017 La.App. 4 Cir. 3] To corroborate the tip, Detective Stovall, with the confidential informant's assistance, conducted a controlled purchase from the Joliet street address. Officer Stovall then obtained a search warrant for that address.
After obtaining the search warrant, Detective Stovall conducted " pre-warrant surveillance" --surveillance of the targeted location to ascertain if the target of the investigation is present there. From a concealed location, Detective Stovall viewed the residence and shed on the Joliet property with binoculars; and he communicated with his take-down team, which was made up of multiple officers. Detective Stovall testified that during the pre-warrant surveillance he " noticed the door to the shed that opened and . . . could see the top of Mr. Campbell's head coming out of that shed into the backyard. [Mr. Campbell] began to loiter around the backyard, look over the fence, up and down the streets, and then he went back in." At that point, Detective Stovall communicated to the take-down team to enter the structure and to secure the location.
The take down team divided into two groups. One group--Sergeant Samuel Palumbo, Jr., and Detective Mike Lorio--entered the shed; the other group entered the residence. After knocking on the shed door and announcing their presence, Sergeant Palumbo and Detective Lorio entered the shed. Both Sergeant Palumbo and Detective Lorio described the shed as a small room containing a bed, dresser, television stand, and nightstand. Upon entering the shed, Sergeant Palumbo and Detective Lorio found Mr. Campbell standing next to the dresser and his female companion, Joelle Perkins, sitting on the bed. Both Mr. Campbell and Ms. Perkins [2015-0017 La.App. 4 Cir. 4] were handcuffed and relocated to the residence, where three other individuals, who the second group of officers found in the residence, were being detained. One of those three individuals was Mr. Campbell's mother, Ms. Alberta Campbell Augustus, who apparently owned the residence.
After the scene was secured, Detective Stovall arrived with the search warrant and advised the subjects of their Miranda rights. While they were waiting for a canine narcotics dog, Detective Stovall, Sergeant Palumbo, and Detective Lorio searched the shed; the other officers searched the residence. During the search of the shed, Detective Stovall recovered two clear plastic bags that were in plain view on the top of the dresser. He testified that " each one of them [the bags] contained a total of 9 pieces of crack cocaine." He described the cocaine as " [i]ndividually packaged, individually wrapped." Sergeant Palumbo located $200.00 in cash and a bag of marijuana on the nightstand next to the bed. Detective Lorio located on the television stand three documents--two medical bills and a medical appointment notice--addressed to Mr. Campbell. One document was addressed to the Joliet Street address; the other two were addressed to the Jeannette Street address. Detective Lorio explained that both 1438 Joliet Street and [2015-0017 La.App. 4 Cir. 5] 8502 Jeannette Street are on the same plot of land. The main residence faces Joliet Street, and the shed faces Jeannette Street.
Sergeant O'Brien testified that during his search of the residence, he recovered two " Good Sense" sandwich bags, a razor blade, and an empty digital scale box. These three items were found together on top of a shelf inside one of the kitchen cabinets. Sergeant O'Brien turned these items over to Detective Stovall to be inventoried. Detective Stovall testified that the razor blade contained a residue.
At trial, the State and the defense stipulated that if Criminalist Nhon Hoang testified, he would confirm that the substances found in the shed tested positive for cocaine and marijuana, respectively. The State also introduced into evidence the criminalist's lab report, which identified the substances found in the shed as cocaine and marijuana.
The sole defense witness at trial was Ms. Augustus. Ms. Augustus' direct testimony was limited to her recollection of the events that occurred on August 12, 2010, during the execution of the search
warrant for her residence located at 1438 Joliet Street. On cross-examination, Ms. Augustus verified that 8502 Jeannette Street and 1438 Joliet Street were part of the same parcel of land. The shed bore the Jeannette Street address; whereas, the municipa1 address for the [2015-0017 La.App. 4 Cir. 6] residence was listed as 1438 Joliet Street. Although she initially denied that Mr. Campbell lived with her, she recanted her testimony after reviewing Mr. Campbell's bond dated August 13, 2013. This bond, which Ms. Augustus signed as surety, listed Mr. Campbell's address as " 1438 Joliet/8502 Jeannette." After reviewing the bond, she testified that she remembered that her son lived with her for a while when he was released from prison. Ms. Augustus, however, adamantly denied that her son sold drugs from her residence.
The State then recalled Detective Stovall in rebuttal to testify about the pre-warrant controlled purchase of cocaine from Mr. Campbell at the Joliet Street address. Detective Stovall testified that on August 4, 2010, he received a tip from a confidential informant advising that Mr. Campbell was selling narcotics from 1438 Joliet Street. Based on that tip, Detective Stovall arranged a controlled purchase at that address.
Detective Stovall explained that before proceeding with the controlled purchase, he searched the confidential informant to insure that he was not carrying any contraband. Detective Stovall supplied the confidential informant with department issued funds for the purchase and drove him to the targeted location. With the use of binoculars, Detective Stovall observed Mr. Campbell engage the confidential informant. Detective Stovall observed Mr. Campbell enter the shed, return to the confidential informant, and hand over the contraband in exchange for the currency the confidential informant tendered. Upon completing the purchase, the confidential informant returned to Detective Stovall and surrendered the contraband. Detective Stovall then obtained a search warrant for the targeted premises. A few days later, Detective Stovall set up the pre-warrant surveillance, [2015-0017 La.App. 4 Cir. 7] which he testified about in the State's case-in-chief. When he was certain that Mr. Campbell was at the targeted location, Detective Stovall signaled the take down team to execute the search warrant. As a result of the evidence found in executing the warrant, the officers arrested Mr. Campbell for possession with intent to distribute cocaine.
A review of the record for errors patent reveals none.
Sufficiency of the evidence
In his second assignment of error, Mr. Campbell contends that the evidence presented at trial was insufficient to support his conviction of possession with intent to distribute cocaine. Mr. Campbell's sufficiency of the evidence argument is two-fold. First, he contends that the evidence did not establish possession. Second, he contends that the evidence did not demonstrate the requisite intent to distribute.
We address Mr. Campbell's second assignment of error first in accordance with the well-settled jurisprudential rule that " '[w]hen issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.'" State v. Miner, 14-0939, p. 5 (La.App.
4 Cir. 3/11/15), 163 So.3d 132, 2015 WL 1085604 (quoting State v. Hearold, 603 So.2d 731, 734 (La. 1992)).
The standard for determining an insufficiency of evidence claim is well-settled. As the Louisiana Supreme Court noted in State v. Brown, 03-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18, the standard is as follows:
[2015-0017 La.App. 4 Cir. 8] When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court " must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (L a.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that " assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).
Id. It is also well settled that " [i]t is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence." State v. Richards, 11-0349, p. 9 (La.App. 4 Cir. 12/1/11), 78 So.3d 864, 869 (citing State v. Cummings, 668 So.2d 1132 (La. 1996); State v. Rosiere, 488 So.2d 965, 968 (La. 1986)).
" The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence." Richards, supra (citing State v. Vessell, 450 So.2d 938, 943 (La. 1984)). " Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion." State v. Rapp, 14-0633, pp. 6-7 (La.App. 4 Cir. 2/18/15), 161 So.3d 103, 108 (citing State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369).
In this case, Mr. Campbell was charged with and convicted of possession with the intent to distribute cocaine in violation of La. R.S. 40:967 A(1), which [2015-0017 La.App. 4 Cir. 9] provides that " it shall be unlawful for any person to knowingly or intentionally ... possess with intent to . . . distribute . . . a controlled dangerous substance or controlled substance analogue classified in Schedule II." Cocaine is one of the controlled dangerous substances classified in Schedule II. La. R.S. 40:964, Schedule II, A(4). To sustain its burden, the State was required to establish that Mr. Campbell intentionally possessed the cocaine and that he had the specific intent to distribute it. See State v. Howard, 00-2700, p. 22 (La.App. 4 Cir. 1/23/02), 805 So.2d 1247, 1261 (citing State v. Williams, 594 So.2d 476, 478 (La.App.4th Cir. 1992)). Mr. Campbell contends that the State failed to establish either the possession or the distribution
element. We separately address each of ...