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State v. Garrison

Court of Appeals of Louisiana, Fourth Circuit

March 29, 2017


         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-367, SECTION "L" Honorable Franz Zibilich, Judge


          Sherry Watters Louisiana Appellate Project COUNSEL FOR DEFENDANT / APPELLANT

          Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore

          Joy Cossich Lobrano Judge

         Devin Garrison ("Defendant") appeals his August 26, 2015 convictions for distribution of marijuana[1] and possession of a legend drug.[2] Further, Defendant appeals his sentence of twenty years at hard labor as a second-felony offender under the Louisiana Habitual Offender Law[3] for distribution of marijuana. Consolidated with Defendant's appeal is the State of Louisiana's (the "State") application for supervisory writs requesting review of the district court's January 15, 2016, ruling adjudicating Defendant to be a second-felony offender rather than a third-felony offender. Finding that this Court should not reconsider its prior reversal of the district court's grant of Defendant's motion to suppress, we affirm Defendant's convictions. Further, finding that the district court erred in adjudicating Defendant a second-felony offender instead of a third-felony offender, we grant the State's writ application, reverse the district court's finding that Defendant is a second-felony offender rather than a third-felony offender, vacate Defendant's sentence of twenty years as a second-felony offender, and remand this case for Defendant to be resentenced as a third-felony offender.[4]

         Factual Background

         On June 10, 2014, Detective Dave Biondillio ("Det. Biondillio") observed Susan Mizell ("Mizell") at Brothers Gas Station ("Brothers").[5] On that day, Det. Biondillio, who was working with a DEA task force, was conducting surveillance in the area of Brothers at Bullard Road and the North I-10 Service Road, which he described as an area of New Orleans East known for "a lot of narcotics trafficking." Det. Biondillio observed Mizell parked in a red PT cruiser. During the approximately ten minutes that passed while Det. Biondillio observed her, Mizell did not exit her car or purchase gas.[6] Instead, Det. Biondillio observed Mizell have a conversation on a cell phone, after which a blue BMW driven by Defendant drove up to Brothers. Mizell began to follow Defendant.

         Det. Biondillio then radioed another officer with the task force, Sergeant Dennis Bush ("Sgt. Bush"), to inform him of Mizell's conduct. Sgt. Bush surveilled Defendant and Mizell to a nearby apartment complex. Defendant and Mizell entered an apartment with a key. The two were inside for five to ten minutes before Mizell returned to the PT cruiser. Mizell then drove away. Sgt. Bush radioed Det. Biondillio as Mizell drove away, but stayed in his surveillance position and continued to observe the apartment. About ten minutes after Mizell left, Sgt. Bush observed Defendant leave the apartment.

         Det. Biondillio stopped Mizell after she left Defendant's apartment, advised her of her rights, and informed her of the ongoing investigation. Det. Biondillio obtained a picture of Defendant based on the license plate number of the blue BMW and showed it to Mizell. She verified that she had purchased marijuana from Defendant, who she knew as "Magnolia." She surrendered a bag of green vegetable matter, which she indicated was located in her bra, and was arrested via summons for simple possession of marijuana. Det. Biondillio then returned to the apartment and maintained surveillance while typing a search warrant.

         Defendant left the apartment before the search warrant was completed. Upon leaving, Defendant was arrested for distribution of marijuana by Sergeant Scott Zemlick ("Sgt. Zemlick"), who was supervising Det. Biondillio and Sgt. Bush during their work with the DEA task force. One bag of green vegetable matter was seized from Defendant's person. Sgt. Zemlik then obtained the key to Defendant's apartment, entered the premises with other officers and secured the area. Officers waited at the apartment while Det. Biondillio conferred with the magistrate and obtained a signature on the search warrant. After the warrant was signed, officers searched Defendant's apartment and seized one clear bag containing 27.5 pills scored with the Mercedes-Benz emblem, one clear bag containing nine pills scored with the number "627, " one digital scale, and a razor blade from a jewelry box in the master bedroom.

         Brian Schulz ("Schulz"), a forensic drug analyst, testified that his job requires him to examine evidence collected from a crime scene and to determine whether controlled dangerous substances are present. At trial, Schulz identified State's Exhibit 1 as the August 15, 2014, report he authored documenting his test results on the evidence recovered in this case. He tested vegetative matter, one pressed red tablet, six green pressed tablets marked with a Mercedes Benz symbol, twenty-one blue pressed tablets also bearing Mercedes-Benz symbols, and nine white round tablets marked AN627. The specimens proved to be marijuana, methamphetamine, [7] and Tramadol.

         Following the jury trial on August 26, 2015, Defendant was convicted of distribution of marijuana and possession of a legend drug.[8] On September 15, 2015, the district court denied Defendant's motions for new trial and for post-verdict judgment of acquittal. On that same date, Defendant waived all delays and the district court sentenced Defendant to concurrent sentences of fifteen years for distribution of marijuana and three years for possession of a legend drug.

         The State then filed a multiple offender bill charging Defendant as a third-felony offender based on a prior conviction for attempted armed robbery and a prior conviction for unauthorized use of a vehicle. Following a multiple bill hearing on January 15, 2016, the district court adjudicated Defendant a second-felony offender, vacated his original fifteen year sentence, and resentenced him to twenty years at hard labor.[9] The State timely filed notice of intent to seek supervisory review of the district court's ruling adjudicating Defendant a second, but not a third, felony offender.

         On April 11, 2016, this Court issued an order consolidating the State's supervisory writ application with Defendant's appeal. We now address both Defendant's appeal and the State's application for supervisory writs.

         Pro Se Assignments of Error

         Defendant assigns two errors in his pro se brief. First, he asserts that the statements, identification, and evidence were obtained as a result of an illegal stop of Mizell and, consequently, should have been excluded as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963). This issue previously came before this Court in an application for supervisory writs. See State v. Garrison, unpub., 2015-0425 (La.App. 4 Cir. 7/13/15). The State successfully obtained review of that ruling, and this Court found that the district court abused its discretion in granting Defendant's motion to suppress. A review of that writ application reflects that the State provided this Court with a copy of the motion hearing transcript, including the district court's ruling, and a copy of Defendant's memorandum in support of his motion to suppress, thus supplying this Court with Defendant's position on the motion.

         "The 'law of the case' doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court." State v. McElveen, 2010-0172, p. 13, fn. 8 (La.App. 4 Cir. 9/28/11), 73 So.3d 1033, 1054 (citations omitted). The law of the case doctrine requires that, as a general rule, appellate courts refuse to reconsider their own rulings on a subsequent appeal of the same case. State v. Robertson, 2013-1403, p. 4 (La.App. 4 Cir. 4/9/14), 136 So.3d 1010, 1012 (citations omitted). "Under the law-of-the-case doctrine, an appellate court will not reverse its pretrial determinations unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result." Id., (quoting State v. Golden, 2011-0735, p. 13 (La.App. 4 Cir. 5/23/12), 95 So.3d 522, 531).[10] This exception to the general rule of law of the case is construed narrowly, and all three parts of this burden must be met in order to garner reconsideration. See, e.g. State v. Cox, 2011-0670 (La.App. 4 Cir. 2/22/12), 85 So.3d 252, 256 (stating that this Court was "barred" from reconsidering a ruling on a supervisory writ which reversed a grant of a motion to suppress where the defendant presented no new evidence). In the case sub judice, because Defendant has adduced no new evidence tending to show that the prior ruling was patently erroneous and produced an unjust result, this Court is barred from reconsidering its prior decision. This assignment of error lacks merit.

         In his second pro se assignment of error, Defendant asserts that he "believes that the jury came back with a verdict of possession of marijuana" instead of distribution of marijuana and that the district court "upgraded" the charge to distribution.[11] In response to these serious allegations, this Court ordered that the verdict forms be filed by the district court as an exhibit to this appeal. A review of the verdict forms indicates, notwithstanding Defendant's accusations, that this assignment of error lacks merit. Defendant was properly convicted of distribution of marijuana and the record contains no evidence that the district court tampered with the jury's verdict.

         Application for Supervisory Writs No. 2016-K-362

         In this consolidated application for supervisory writs, the State seeks review of the district court's adjudication of Defendant as a second-felony offender rather than a third-felony offender. The State argues that the district court abused its discretion by finding the State had not proven beyond a reasonable doubt that Defendant was convicted on May 15, 2008, of unauthorized use of a vehicle in Texas. Finding that the district court did abuse its discretion, we grant the writ, vacate Defendant's sentence, and remand for Defendant to be sentenced as a third-felony offender.

         At the multiple bill hearing on January 15, 2016, Officer George Jackson ("Officer Jackson") was qualified by stipulation as an expert in latent fingerprint analysis. He testified he took Defendant's fingerprints on the morning of the hearing, and he identified State's Exhibit 1 as the card bearing those fingerprints. Officer Jackson then identified State's Exhibit 2 as a bill of information containing a plea of guilty form, docket master, minute entry and arrest register from a Louisiana conviction for attempted armed robbery[12] bearing Case No. 481-258. State's Exhibit 2 contained fingerprint impressions but they were too dark, and thus not suitable for comparison purposes. However, Officer Jackson said he was successful in obtaining a fingerprint card associated with the arrest register contained in State's Exhibit 2, which he identified as State's Exhibit 3. Officer Jackson testified the arrest register in State's Exhibit 2 bore the same folder number (2142045) as the folder number listed on State's Exhibit 3, as well as the identical name, date of birth, address, charge, and FBI number. Officer Jackson compared the right thumbprint from State's Exhibit 3 to the right thumbprint contained on State's Exhibit 1 and concluded the right thumbprints on State's Exhibits 1 and 3 were identical and belonged to Defendant.[13]

         Continuing, Officer Jackson said he reviewed State's Exhibit 4, which was a certified conviction packet from the State of Texas, containing two bills of information detailing separate charges against Defendant - one for unauthorized use of a vehicle (Case No. 1111206), and another for evading arrest or detention using a vehicle (Case No. 1111279). The Texas certified conviction packet contained a guilty plea as to each charge, two Waivers of Jury Trial forms and judgments of conviction as to the Texas charges. The waivers and judgments contained fingerprints. Officer Jackson was able to compare the thumbprint from the conviction for evading arrest or detention using a vehicle (Case No. 1111279), to the fingerprints on State's Exhibit 1. That thumbprint matched the thumbprint contained on State's Exhibit 1. Officer Jackson indicated the thumbprint from the unauthorized use of a vehicle (Case No. 1111206) was not suitable for comparison, but both of the judgments of conviction bore identical information as to Defendant's name, date of birth, race, sex and CID number. Concluding, Officer Jackson testified comparison of the thumbprint in State's Exhibits 3 and 4 with the corresponding digit on State's Exhibit 1 produced a conclusive match to Defendant.

         At the multiple bill hearing, the State indicated it was not using the Texas conviction for evading arrest or detention using a vehicle to enhance Defendant's sentence because that offense was only a misdemeanor. Instead, the State elected to use the Louisiana conviction for attempted armed robbery and the Texas conviction for unauthorized use of a vehicle to enhance Defendant's conviction. Defendant argued that the bill of information for the Texas conviction is defective for purposes of the multiple bill because it listed a vehicle value range "[of] $1, 500.00 or more but less than $20, 000.00, " as to the offense of unauthorized use of a vehicle, while the Texas statutory definition of that offense, Section 31.07 of the Texas Penal Code, [14] does not specify a value amount. In support of this argument, Defendant cited State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, for the proposition that both the Texas and the Louisiana "statutes must translate properly." Additionally, the defense claimed an absence of proof that Defendant was properly Boykinized at the time he entered his guilty plea in Texas renders that conviction insufficient for purposes of the multiple bill. The district court reasoned:

The court is concerned about the Texas conviction. The Court has multiple concerns. There is no transcript. There is no actual Boykin as we are familiar with it. There is something where the clerk has checked off some boxes. I have nothing to convince me other than a box being checked off that counsel ...

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