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State v. Smith

Court of Appeals of Louisiana, Fifth Circuit

August 30, 2017

STATE OF LOUISIANA
v.
ALCUS A. SMITH

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-1144, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Juliet L. Clark

          COUNSEL FOR DEFENDANT/APPELLANT, ALCUS A. SMITH Jane L. Beebe

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg

         CONVICTIONS AND SENTENCES AFFIRMED;

         REMANDED FOR CORRECTION OF COMMITTMENT

         MEJ

         CONCURS AND ASSIGNS REASONS

         FHW

         CONCURS WITH REASONS WITH WHICH WICKER, J. JOINS

         FHW

         HJL

          MARC E. JOHNSON JUDGE.

         Defendant/Appellant, Alcus A. Smith, appeals his convictions and sentences from the 24th Judicial District Court, Division "M". For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On February 26, 2015, Defendant and 20 other co-defendants were charged in a 30-count indictment for various acts of racketeering committed in furtherance of a narcotics distribution network on the West Bank of Jefferson Parish operated by a street gang known by its members as the "Harvey Hustlers."[1] Specifically, Defendant was charged with racketeering, in violation of La. R.S. 15:1352 (count one), conspiracy to distribute cocaine, in violation of La. R.S. 40:979 and La. R.S. 40:967(A) (count two), the second degree murder of Donte Hall, in violation of La. R.S. 14:30.1 (count seventeen), and possession with intent to distribute cocaine, in violation of La. R.S. 40:697(A) (count nineteen).[2] Defendant pleaded not guilty to the charged offenses at his arraignment on March 23, 2015.

         On October 26, 2015, the trial court heard and denied Defendant's motion to suppress wiretaps. Trial before a 12-person jury commenced against Defendant and co-defendant Williams on October 27, 2015. At trial, evidence was presented that this case arises from a federal investigation conducted by a task force identified as the Federal Bureau of Investigation (FBI) New Orleans Gang Task Force, comprised of federal and state officers, into drug trafficking in Jefferson Parish. Through the investigation, law enforcement learned that a narcotics distribution network was being operated on the West Bank of Jefferson Parish by a violent street gang known as the "Harvey Hustlers." It was discovered that members of this narcotics organization would obtain controlled dangerous substances transported into the New Orleans area from known source locations, including the State of Texas, from fellow gang members and other associates. The acquired narcotics were then converted into saleable form and provided to street level dealers working for the Harvey Hustlers, who in turn would sell the product for the profit of the gang's members.

         According to the testimony established at trial, while operating their narcotics network, the members of the Harvey Hustlers and their known associates committed various drug offenses and other criminal acts including, but not limited to, murder, solicitation to commit murder, obstruction of justice, and illegal possession of firearms. Witness testimony confirmed that co-defendant, Robert Williams aka "Lil Rob, " held a leadership role in the Harvey Hustlers and as such, directed the illegal activities of other gang members, while Defendant, Alcus Smith aka "Bug, " participated in the transportation and distribution of wholesale amounts of powder cocaine to Harvey Hustler members. Information regarding the inner workings of this criminal enterprise were further obtained from numerous wiretaps secured on cellular telephones belonging to co-defendant Williams, Defendant, and other members and/or associates of the Harvey Hustlers.

         As a result of the multi-agency investigation, which spanned several years, 21 defendants were indicted in both federal and state courts and charged with over 50 acts of racketeering and 30 additional criminal offenses.

         The specific facts adduced at trial surrounding the offenses for which Defendant and co-defendant Williams have been charged are as follows.

         The drug trafficking investigation

         FBI Special Agent Todd Schliem testified regarding the multi-agency investigation spanning the course of years of the Harvey Hustlers, recognized for extreme acts of violence associated with drug distribution in Jefferson Parish. According to Special Agent Schliem, the members of the Harvey Hustlers and their known associates totaled over 100 and their purpose was to make money through the sale of narcotics. He explained that in 2005-in the time period following Hurricane Katrina-there was a limited supply of narcotics available in Jefferson Parish, with one exception. In the Scottsdale neighborhood on the West Bank of Jefferson Parish, the Harvey Hustlers were able to establish and/or maintain a significant drug supply, thereby creating high demand for their product. Special Agent Schliem noted that from that time forward, the Harvey Hustlers exerted influence in Scottsdale and other neighborhoods in Jefferson Parish, establishing a hierarchy inside their gang.

         Co-defendant's brother, David Williams aka "Mr. Harvey, " was identified as the leader of the Harvey Hustlers until his murder in 2010. It was discovered that during the time period when the Harvey Hustlers were experiencing very profitable drug sales, there was an internal strain amongst the gang members vying for leadership positions. A "civil war" broke out, dividing the group into those who supported David Williams and those who supported brothers Melvin and Jermaine Hudson. Special Agent Schliem described the events leading up to David Williams' murder as a "domino effect" beginning with the murder of Chad Jones, a close associate of David Williams. He explained that when David Williams discovered that a fellow gang member by the name of Laval London had participated in Jones' murder, David Williams had London killed in retaliation. Consequently, in retaliation for the murder of London-who was a close associate of the Hudson brothers-David Williams was killed.[3] During this turmoil, the Harvey Hustlers separated into subgroups based on their identified loyalties. Those loyal to the Hudson brothers grouped into subsets of the gang identified as the "Murder Squad" and the "Young, Black and Successful" (YBS), while those loyal to David Williams and his brother, co-defendant Williams, identified as "HH."

         Based on the investigation into the members of the Harvey Hustlers, approximately ten federal and state court indictments were obtained resulting in over 20 convictions. At the time the state and federal indictments were returned, co-defendant Williams was recognized as one of the leaders of the Harvey Hustlers.

         Several investigative techniques were employed while conducting the investigation into the Harvey Hustlers, including basic surveillance, analysis of phone records, witness interviews, use of confidential informants, controlled narcotics purchases, and wiretaps. Among the relevant wiretaps were those placed on the cellular telephones of co-defendant Williams, co-defendant Williams' brother, Clifford Sonnier, and Nathan Carter beginning in October of 2013. Special Agent Schliem identified for the jury numerous intercepted phone calls purported to capture the voices of co-defendant Williams and/or Sonnier and their alleged associates. Specifically, testimony was elicited regarding a November 6, 2013 intercept wherein co-defendant Williams received a phone call from an unidentified female who alerted him that the police had been by his residence at 1104 Clydesbank and reminded him that he "put his mojo [synthetic marijuana] in there." Co-defendant Williams then replied, "[y]ep and my hammer, " which Special Agent Schliem explained is street vernacular for a firearm. Special Agent Schliem noted that the referenced firearm was stolen and had been seized from the residence by Detective John Wiebelt.

         Detective Wiebelt of the Jefferson Parish Sheriff's Office (JPSO) confirmed that on November 6, 2013, he assisted in an eviction at 1104 Clydesbank. The home was unoccupied, and inside, officers seized a firearm and a black bag containing synthetic marijuana (also known as "mojo" or "gas") and a digital scale. It was discovered that the firearm seized had been stolen.[4]

         Special Agent Schliem also identified various phone calls and text messages exchanged between members of the gang and their known associates including Defendant and Sonnier, leading up to a meeting to conduct a drug transaction at a daiquiri shop in Harvey, Louisiana, on November 18, 2013.

         The relevant intercepted communications began with a text message sent by Sonnier to Carter at 2:55 p.m., in which Sonnier texted Carter: "Sup Big Homie." At 3:10 p.m., Carter responded, "I'm 'bout to call him." Carter then sent another text message to Sonnier that said: "he 'bout to call you from a 758 num." Special Agent Schliem noted that "758" is the first three digits of the phone number used by Defendant. A phone call was then made at 3:17 p.m., by Defendant wherein he told Sonnier, "Nathan gave me your number" and Sonnier told Defendant, "give me three of them, " prompting Defendant to respond, "like last time."[5] Two subsequent conversations between Sonnier and an unidentified female reflect Sonnier's effort to obtain "about $1500." Then, at 5:29 p.m. Defendant texted Sonnier, "I'm ready when you ready." Sonnier then texted Defendant at 5:55 p.m. inquiring as to his whereabouts, to which Defendant responded, "I'm on Ames." Sonnier informed Defendant that he was at the daiquiri shop, and Defendant replied, "K. On my way." Meanwhile, a phone call was also intercepted between Sonnier and Willie Thornton during which Sonnier told Thornton that he wanted him to "work his magic for me"[6]and that he will pick him up. At 6:17 p.m., Sonnier asked Defendant where he was and advised him that he was turning on Manhattan Boulevard at Lapalco, to which Defendant informed Sonnier that he was "about to pull up there."

         FBI Agent Lon Boudreaux testified that he participated in the wiretap surveillance of the phones belonging to co-defendant Williams and Sonnier on November 18, 2013. Based on the content of the phone calls, officers monitored the movements of Sonnier's Mazda. During the course of the surveillance, Agent Boudreaux testified that he observed activity consistent with narcotics trafficking. Agent Boudreaux testified that at one point, he followed the Mazda to a daiquiri shop at Lapalco and Ames Boulevard where a meeting took place. At the daiquiri shop, Agent Boudreaux observed a red Malibu pull-up alongside the Mazda and throw an object into the Mazda. Finding this activity suspicious, officers followed the red Malibu before receiving a phone call from Special Agent Schliem regarding a second meeting and delivery of narcotics that was scheduled to occur at another daiquiri shop on Manhattan Boulevard.

         Upon arrival, Agent Boudreaux observed the Mazda pull into the parking lot and noticed Sonnier standing outside talking to Thornton.[7] A few minutes later, co-defendant Williams walked out of the daiquiri shop, and a Nissan sports car pulled in and parked across from Sonnier's vehicle. Defendant exited from the driver's side of the Nissan.[8] According to Agent Boudreaux, Defendant approached Sonnier and spoke to him.[9] Defendant then escorted Thornton back to his vehicle where two other unidentified individuals exited the Nissan and served as "lookouts, " while Thornton and Defendant got into the car. Approximately one minute later, Thornton exited the Nissan and went back to where co-defendant Williams and Sonnier were standing. After a time, co-defendant Williams, Thornton, Sonnier, and an unidentified female entered the Mazda with Brandon Motton behind the wheel. The vehicle then departed followed by intercepting undercover police units. A high-speed chase ensued during which a text message was intercepted between Sonnier and Defendant that read, "you serious fool?" After the chase, Agent Boudreaux indicated that Thornton and Motton were apprehended, but the remainder of the occupants in the vehicle evaded officers on foot.

         On cross-examination, Agent Boudreaux testified that on a couple of previous occasions, he had seen co-defendant Williams and Sonnier "drive around all night stopping at one location and the next, " and that based on the wiretaps, it was concluded that they were participating in drug transactions.

         The high-speed chase was explained in greater detail by Detective Anthony Buttone of the JPSO, who testified that on November 18, 2013, at approximately 6:30 p.m., he participated in a joint investigation with the FBI in which a mobile surveillance of a daiquiri shop, on Manhattan Boulevard and the West Bank Expressway, was conducted. Pursuant to the surveillance, Detective Buttone, along with Agent Mike Tucker and Lieutenant Kevin Decker-each in separate unmarked police units-followed a silver Mazda as it exited the parking lot of the daiquiri shop. After having observed several traffic infractions, Detective Buttone elected to conduct a traffic stop. Detective Buttone testified that the Mazda stopped briefly before it sped off. A high-speed chase ensued, and sight of the vehicle was lost for a brief period of time. The Mazda was ultimately discovered in a driveway at 917 Drake Avenue, where it had been abandoned. Inside the vehicle, the officers seized two plastic bags containing what appeared to be marijuana, [10] sandwich bags containing a razor blade, a digital scale, and crack cocaine.[11] The driver, Brandon Motton, and a passenger, Willie Thornton, were found hiding nearby and were taken into custody.

         Detective William Roniger of the JPSO also participated in the high speed chase and arrests of Motton[12] and Thornton. On the evening of their apprehension, Detective Roniger testified that his role was to monitor the telephone wiretap surveillance of cellular phones registered to co-defendant Williams and Sonnier and to participate in the mobile surveillance of the Mazda. Detective Roniger testified that during the chase, information was gleaned from communications on the wiretap that provided some indication of the actions of the individuals inside the Mazda. This information included the whereabouts of co-defendant Williams and Sonnier in the immediate aftermath of the chase, as well as information regarding objects that may have been thrown from the Mazda during the chase.

         Accordingly, a search of the route taken by the Mazda during the chase was conducted resulting in the recovery of various photographs, 128 grams of cocaine, four grams of crack cocaine, and a Glock firearm-later learned to have been reported stolen. Detective Roniger further testified on cross-examination that based on co-defendant Williams' own admission heard on the wire intercepts, he believed co-defendant Williams was the only person inside the Mazda to have possessed the firearm that was recovered.[13] Detective Roniger also testified regarding several "controlled buys" he oversaw between his confidential informant and members of the Harvey Hustlers including Thornton, Keitrel Gumms, Richard Chess, Carlnell Pierce, and Corey Trent.[14]

         Special Agent Schliem was recalled and testified that prior to the meeting at the daiquiri shop in November of 2013, communications were intercepted demonstrating Sonnier's intent to acquire narcotics. He further indicated that after the meeting at the daiquiri shop and during the high-speed chase between the officers and the Mazda, a text message was sent between Sonnier and Defendant. The text message read, "U serious fool?" Later that evening, Sonnier then sent a text message to an unknown person writing, "[m]an, dis sum crazy s**t. I think n***er jus try to set me up. I jus went spent 5, 000 wit him. We met on Manhattan. By time I made it to Ames I was getting pull o." Agent Schliem noted that $5, 000 would be enough money to purchase the 4.5 ounces of cocaine discarded from the Mazda and seized from the side of the road following the chase. Another text message, also sent by Sonnier that same evening, to another unidentified individual stated, "[m]an, my f**king lil world so crazy, bruh. I jus got n a high-speed chase bout a hour ago. Took a lost for 5 racks.[15]Well, I hope its not a lost. I gotta go find it. I think n***er tried 2 set me up. I knew I shouldve brought u dat money. My nerves so bad. Got the car towed & all."

         The day after the chase, November 19, 2013, a text message from Sonnier to Nathan Carter-an associate/business partner of Defendant-was intercepted. In the text message, Sonnier wrote to Carter, "[c]an you meet me sumwea big son i need to holla at u str8up, " to which Carter replied, "[b]e down there this weekend." Approximately four minutes later, Sonnier responded to Carter, "Son, bull[16] told u wat happen?" to which Carter replied "Yea." Next, Sonnier then texts, "Big son, that was all I had son, nolie && dey towed my gurl s. I'm n dis lil rat motel wit nut10. Feel me. Cnt go hme. Scared dey gon cum dea. I need u tho so, " to which Carter responded, "Ima hit u when I come down, " prompting Sonnier to reply, "Imma just lay low till u cum thru son dis s mad crazy."

         In addition to these text message communications, Special Agent Schliem testified that telephone calls were also intercepted following the chase. In these communications, co-defendant Williams was heard admitting to his participation in the event, as well as to his possession of a firearm, aka a "hammer, " and to having pointed the firearm at Motton in order to compel him to evade the police. Specifically, co-defendant Williams was heard talking about Sonnier's vehicle, the Mazda that was searched by the police, saying, "[t]hey ain't nothing in there, though. They ain't got nothing in it, but we got beaucoup pictures and s**t int here." In the pictures referenced by co-defendant Williams, various members of the Harvey Hustlers, including co-defendant Williams, Sonnier, Motton, Tavaris Arbuthnot aka "T-row, " Ray Woodruff, Isaac Smith, Frankie Hoofkin, Walter Wright, Kerry Reynard, Richard Chess, Keitrel Gumms, Cornell Harris, and Kevin Simmons, are depicted. Some of the gang members are seen wearing chains with the letters "HH"[17]for Harvey Hustlers or "SD" for Scottsdale. In another phone call, Sonnier was heard explaining to co-defendant Williams that when he went back to search for the gun and/or drugs that were thrown from the Mazda during the chase, the Westwego Police Department pulled him over and issued him a traffic citation and then let him go.

         Willie Thornton testified under legal compulsion, pursuant to Louisiana Code of Criminal Procedure Article 439.1. Thornton testified regarding his three prior felony convictions and his pending criminal offenses charged in the same indictment as co-defendant Williams and Defendant. Thornton told the jury that he had been incarcerated since November 18, 2013, following a high-speed chase with the police. At the time of his arrest, Thornton was with Motton aka "Pudgy, " Sonnier aka "Dut or Dirty, " and co-defendant Williams, whom he referred to as "Rob." Thornton explained that co-defendant Williams and Sonnier are brothers, and he knew them from growing up together in the same neighborhood.

         Thornton explained that in November of 2013, he was a passenger in the Mazda driven by Motton when they attempted to evade the police. He denied seeing co-defendant Williams point a gun at Motton during the pursuit or order him to drive off from the police but admitted to there being a quantity of "mojo" in the car. Thornton further denied any acquaintance with Defendant and, thus, denied taking possession of cocaine from Defendant at the daiquiri shop prior to entering Motton's car and engaging in the high-speed chase. Thornton told the jury that he knew of the Harvey Hustlers, but in his opinion, he did not believe they were an organized group with an identifiable leader. Thornton named Melvin Hudson, Germain Hudson, Tedrick Bernard, Paul Smith aka "Buck, " Ellis Landix, Jr., and Corey Trent, as members or associates of the Harvey Hustlers.

         Brandon Motton also testified under legal compulsion, pursuant to Louisiana Code of Criminal Procedure article 439.1. Motton admitted to having prior felony drug convictions and to being charged in the same indictment as co-defendant Williams and Defendant. He too testified that he was arrested following a police chase in November 2013 but denied being in the Mazda during the chase. Motton explained that at the time of his arrest, he was in the Day Development Subdivision in Westwego and was hiding from the police because he was on parole, further maintaining that he was not with co-defendant Williams, Sonnier, or Thornton prior to his arrest. He did however admit to knowing co-defendant Williams and Sonnier.

         Paul Smith testified that he was indicted along with co-defendant Williams and pleaded guilty to charges of racketeering, conspiracy to distribute cocaine, conspiracy to distribute heroin and marijuana, possession with intent to distribute oxycodone, and possession with intent to distribute cocaine. He further admitted to being an active participant in the Harvey Hustlers through which he engaged in various criminal acts which included obtaining and selling narcotics. He testified that he did not "recall" co-defendant Williams being a member of the group. When the State confronted Smith with the factual basis made as part of his guilty plea, he testified that he did not "recall" accepting as true the statement that "Members of the Enterprise who engaged in this activity on a daily basis . . . included . . . Robert 'Lil Rob' Williams." It was further established that, at the time of his guilty plea, he swore as true that "Enterprise members and their associates engaged in acts of violence to protect the perceived interests of the Enterprise members, exact revenge upon enemies of the Enterprise members, punish Enterprise members whose conduct displeased Enterprise leaders and to develop the reputation of the Harvey Hustlers as a group to be feared by members of the community."

         Harry Smoot testified that he pleaded guilty in federal court to several charges related to drug-trafficking conspiracy that took place between January 1, 2010 through November 20, 2013, wherein he conspired with co-defendant Williams, Sonnier, Frankie Hoofkin, Ray Woodruff, Terrence Kelley, and others to sell drugs. He admitted that, during the course of the conspiracy, he provided drugs, including heroin, cocaine, and marijuana, to other individuals who participated in the conspiracy with the objective towards monetary gains. He testified that he distributed large quantities of drugs to other "small time drug dealers" associated with the Harvey Hustlers, including Keitrel Gumms, Kerry Reynard, Richard Chess, and Bryant Gumms at co-defendant Williams' behest. Smoot testified that at times he saw co-defendant Williams with large sums of money but could not state whether the money was related to any drug transactions. He further testified that co-defendant Williams provided him with some "support and protection" as he transacted his drug business.

         Torey Richardson testified that he was incarcerated on federal convictions for "conspiracy to possess firearms, RICO conspiracy and conspiracy to possess 280 grams or more of crack cocaine."[18] Richardson told the jury that he sold drugs obtained from various members of the Harvey Hustlers, including Melvin Hudson, Germain Hudson, Paul Smith, and David Williams. During that time, he also observed co-defendant Williams sell cocaine "a few times" and claimed to know that co-defendant Williams supplied "slabs of cocaine"[19] to other members of the Harvey Hustlers.

         Tedrick Reynard was also incarcerated at the time of trial for various federal drug related convictions.[20] Reynard testified that he was a drug dealer in the Scottsdale/Harvey area for eight to nine years. During that time, he was provided with drugs supplied by members and associates of the Harvey Hustlers. Among his suppliers were co-defendant Williams, David Williams, and Melvin Hudson. He acknowledged that at some point a dispute amongst members of the gang broke out and, as a result, David Williams was killed. He testified that after David Williams was killed, co-defendant Williams stepped forward to "run things." He stated that co-defendant Williams was "feared, " and, thus, people listened to him.

         The transportation of narcotics from Texas to Louisiana

         Donald Nance, former State Trooper with the Jefferson County Sherriff's Office in Texas, testified that on April 6, 2014, he received a call from Drug Enforcement Agency (DEA) Agent Mike Lumpkin regarding two vehicles, traveling from Houston on Interstate-10 in the direction of New Orleans, suspected to be carrying contraband. Sergeant Nance was able to locate the caravanning vehicles and effect a stop based on the information he received. Sergeant Nance testified that one of the vehicles-an Acura MDX-was driven by Defendant and inside a "hidden compartment" within the vehicle was $13, 000.[21] Detective Eric Bowman, also of the Jefferson County Sheriff's Office, assisted Sergeant Nance in the stop of the vehicles and testified that the second vehicle was driven by Joseph Holmes and was found to contain eight "bundles" of "drugs, " later confirmed to be cocaine, hidden underneath the front bumper.[22] Detective Bowman testified that Holmes indicated he was traveling from Texas to Harvey, Louisiana.

         Pursuant to the stop by Sergeant Nance and Detective Bowman, Holmes was arrested and pleaded guilty to possession with intent to distribute narcotics. Holmes testified that he and Defendant were traveling together in separate vehicles from Houston, Texas, to Harvey, Louisiana. He stated that he was transporting the cocaine in his vehicle, as he had done on prior occasions, pursuant to his business agreement with Defendant and Nathan Carter. Holmes explained that he would drive from Harvey to Houston and back after retrieving at least 20 kilograms of cocaine per month, [23] paid for by Defendant[24] and on occasion, Carter. He further testified that on his return trip he would always travel with a second vehicle whose purpose was to serve as a "look-out."

         Marlon Mercy also testified that he pleaded guilty to charges of racketeering and conspiracy to distribute cocaine in connection with his involvement in the procurement of cocaine to be transported between Texas and Jefferson Parish, Louisiana. He testified that while living in Texas, he worked with Defendant and Carter to obtain multiple kilograms of cocaine ranging in price from $27, 500 and $28, 000 per kilogram. Mercy testified that on the day of Defendant's and Holmes' arrests, they had obtained cocaine from him in Houston at a man known as "Payday's" apartment. He explained that Defendant tested the product to ensure its quality and then gave him money for the cocaine.

         Nathan Carter testified that he too was incarcerated for having pleaded guilty to racketeering and conspiracy to distribute cocaine. Carter confirmed that he was involved with Defendant, Mercy, and Holmes in the distribution of cocaine from Texas to Jefferson Parish, Louisiana. He stated that, between November of 2013 and April of 2014, the group transported more than 20 kilograms of cocaine per month to Jefferson Parish. Once the cocaine was transported to Jefferson Parish, Carter testified that it was then sold at $31, 000 per kilogram. He testified that once in Jefferson Parish, Defendant distributed the cocaine to Sonnier. Carter told the jury that one time Sonnier complained to him that he had been involved in a police chase in November of 2013, which resulted in the loss of the cocaine he had obtained from Defendant.

         Wiretap intercepts

         FBI Special Agent Keith Burriss testified as an expert in the field of drugs, weights, prices, distribution of drugs, drug-trafficking, and drug-trafficking organizations. He explained to the jury that he monitored the wiretaps on co-defendant Williams and Sonnier's cellular phones in 2013. While monitoring co-defendant Williams' phone conversations in November of 2013, Agent Burriss identified a conversation in which co-defendant Williams and a male named "Minny" discussed the need to "smoke somebody" named "Tosh." Agent Burriss relayed this information to Detective Roniger, who then took the referenced individual into custody. In another call, Agent Burriss testified that he heard co-defendant Williams advise a caller that he would be able to supply him with a "hundred dollars' worth" of cocaine since the caller had run out of his supply. Agent Burriss further testified regarding a phone call to co-defendant Williams in which the caller asked about purchasing an ounce of cocaine, to which co-defendant Williams replied, "[o]n Dirty level, not my level." Agent Burriss believed that to mean that such quantity is not what co-defendant Williams "typically does, it's going to be whatever Dirty typically does." In the same call, co-defendant Williams also noted that an ounce of cocaine would cost $1, 100. Agent Burriss explained to the jury that with respect to narcotics trafficking in general, 20 kilograms of cocaine could net a profit of $450, 000 per month.

         Detective Roniger confirmed that he was the affiant on the wiretaps obtained on the phones belonging to co-defendant Williams and Sonnier. He testified that while monitoring co-defendant Williams' phone, information was received regarding a potential threat to Tosh Toussaint's life at the direction of co-defendant Williams. Toussaint was ultimately taken into custody on unrelated criminal charges and afforded protection based on the content of the intercepted phone call.

         FBI Special Agent Schliem was re-called and testified regarding multiple wiretapped conversations amongst the members of the conspiracy.[25] Special Agent Schliem testified that among the wiretapped conversations were those between Defendant, Carter, Marlon Mercy, and Holmes regarding the exchange of money to pay for approximately 20 kilograms of cocaine each month from a supplier in Houston to be transported back to Jefferson Parish. He also testified regarding multiple phone communications involving co-defendant Williams, Keitrel Gumms, Sonnier, and Ray Woodruff relating to drug trafficking and a shooting that occurred at the Lapalco Apartments on April 22, 2013.

         The Murder of Donte Hall

         Detective Travis Eserman of the JPSO testified that he was the lead investigator assigned to the November 16, 2013 shooting death of Donte Hall, whose body was found outside of 2629 Pelican Bay Boulevard, Marrero, Louisiana. Detective Eserman testified that Hall was shot at approximately 7:00 p.m. in the middle of the street in a residential neighborhood and that Defendant was developed as a suspect. At the scene of the homicide, firearm casings were recovered and preserved for analysis. Additionally, three residences with security camera views of the homicide scene were retrieved and analyzed. Hall's cell phone records were also obtained, [26]and it was noted that there were over 50 phone calls between phones registered to Hall and Defendant on the day before his murder and on the day of his murder. There were also numerous phone calls between Hall and Leroy Bird, a close friend of Hall, who advised Detective Eserman of Hall's activities leading up to his murder. Information provided by Bird led Detective Eserman to an apartment in the St. Germaine Apartment Complex, Apt. F-301, used by Defendant. After speaking with the leasee of the apartment-Robin Toussaint-Detective Eserman obtained Defendant's phone number and then his cell phone records. From the phone records it was determined that the last phone call between Defendant and Hall was at 6:41 p.m., approximately 19 minutes before Hall was murdered.

         Robin Toussaint testified that she rented an apartment at the direction of Defendant[27] at the St. Germaine Apartment Complex located at 2101 Manhattan Boulevard, apartment F-301.[28] Ms. Toussaint never lived at the apartment but was asked by the apartment manager to come to the apartment to speak with the police about a murder investigation, at which time she provided the police with Defendant's phone number and identified Smith from a photograph.

         Leroy Bird, a friend of Hall's and an incarcerated felon serving 15 years in prison, testified that Hall introduced him to Defendant, who would supply him with cocaine which he would then sell. He testified that he spoke to Hall less than an hour before Hall's murder and that during their conversation, Hall told him he was "going to go ride with Bug [Defendant]." He explained that the day before Hall's murder, Hall had set up a drug deal between Defendant and another individual, but instead of conducting the drug transaction, Defendant had been robbed and thus believed Hall "had something to do with it." He further testified that on the day Hall was murdered, he warned Hall not to go with Defendant, to which Hall replied, "I'm not going to let that p***y a** kill me . . . if he come by hisself [sic], I'm going to go with him. If he come with people in the car, I ain't going with him." Bird attempted to call Hall approximately 30 minutes after their conversation but received no answer. Thus, when Bird learned of Hall's murder, he informed the police where Defendant lived, admitting that he wanted to kill Defendant himself for what he had done.

         Maya Jackson testified that she was acquainted with Defendant and Hall. She testified that she was with Hall on the evening of his murder and saw Defendant pick up Hall in a black Infiniti.[29] She also noticed a white vehicle speed off behind Defendant's vehicle after picking up Hall.[30]

         Nathan Carter also told the jury that four hours prior to Hall's murder, he spoke to Defendant who informed him that Hall had "set him (Defendant) up to be ripped off in a drug transaction, " and that he intended on "getting him back." Carter took this to mean that Defendant was going to "rob, harm, or kill" Hall, so he advised him "not to do it." The next time Carter spoke with Defendant he indicated to him that "it was done, " and "no one knew he had done it and that he didn't have anything to worry about."[31]

         Jene Rauch of the JPSO Crime Laboratory testified as an expert in firearm and toolmark identification and shooting incident reconstruction. Based upon her analysis of the ballistics material in the Hall shooting, she concluded that "at least three guns" were discharged at the scene. The casings were consistent with having been fired from at least one 9 mm weapon and two .40 caliber weapons.

         At the conclusion of the trial on November 6, 2015, the jury returned verdicts of guilty as charged on all counts against Defendant except on count seventeen, the second degree murder of Donte Hall, which resulted in a hung jury.[32], [33] On November 18, 2015, the trial court heard and denied Defendant's motion for new trial. Immediately thereafter, and after a waiver of delays, the court sentenced Defendant on count one (racketeering) to 50 years imprisonment at hard labor; count two (conspiracy to distribute cocaine), 15 years imprisonment at hard labor; and count nineteen (possession with intent to distribute cocaine), 30 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence for the first two years of the sentence. The court further ordered all of Defendant's sentences to run concurrently with each other.

         On November 30, 2015, the State filed a habitual offender bill of information on count one, alleging Defendant to be a second felony offender. On December 9, 2015, prior to the habitual offender proceedings, Defendant filed a motion for appeal, "as to the convictions returned on November 6th 2015 and the sentences imposed on November 18, 2015."

         A hearing was held on the habitual offender bill on December 17, 2015, after which the trial court adjudicated Defendant to be a second felony offender. On the same date, the trial court vacated Defendant's sentence on count one, and resentenced him as a second felony offender, pursuant to La. R.S. 15:529.1, to 65 years imprisonment at hard labor, without the benefit of probation or suspension of sentence. The court further ordered Defendant's enhanced sentence on count one to run concurrently with any other sentences he was already serving.

         The trial court granted Defendant's motion for appeal following his resentencing on the habitual offender bill on December 17, 2015. The instant appeal follows.

         ASSIGNMENTS OF ERROR

         On appeal, Defendant alleges the trial court erred: 1) in failing to grant the motion to suppress the wiretap; 2) in failing to grant the motion for new trial based on the insufficient evidence presented on count nineteen; 3) in failing to grant the mistrial when improper contact was had between a juror and the prosecutor; and 4) by imposing an excessive sentence that was disproportionate to the sentence of co-defendant Williams.

         LAW AND ANALYSIS

         Denial of Motion for New Trial[34]

         Defendant asserts the State failed to present sufficient evidence to establish that he possessed cocaine with the intent to distribute on November 18, 2013-the crime alleged in count nineteen. Specifically, Defendant maintains that neither actual nor constructive possession of cocaine by Defendant was supported by the evidence presented at trial and, thus, concludes the elements of the crime were not proven beyond a reasonable doubt. Accordingly, Defendant avers that the trial court erred in ...


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