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State v. Smith

Court of Appeals of Louisiana, Fourth Circuit

December 13, 2017

STATE OF LOUISIANA
v.
ERVIN SMITH

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-802, SECTION "K" Honorable Arthur Hunter, Judge

          Leon Cannizzaro District Attorney Mithun Kamath Assistant District Attorney FOR PLAINTIFF/APPELLEE

          Katherine M. Franks LOUISIANA APPELLATE PROJECT FOR DEFENDANT/APPELLANT

          Court composed of Judge Paula A. Brown, Judge Tiffany G Chase, Judge Marion F. Edwards, Pro Tempore

         Defendant, Ervin Smith, appeals his conviction on a charge of possession with intent to distribute cocaine in violation of La. R.S. 40:967(B)(1), and his sentence as a multiple offender. For reasons that follow, we affirm the conviction and sentence.

         FACTS AND PROCEDURAL HISTORY

         In June of 2014, two New Orleans police officers on routine patrol in a marked car observed four men standing in front of a car repair shop on Jackson Avenue in New Orleans in an area known for drug trafficking. The officers saw what appeared to be a drug transaction between Smith and a man subsequently identified as Ricky Brock. In the transaction, Brock handed money to Smith who was fidgeting with something in his hand. As the officers drove by, Brock put the money in his pocket. After observing this transaction, the officers circled back to the area and stopped the car. As one officer got out, he saw Smith drop a pill bottle to the ground. The officer retrieved the bottle, which contained thirty-two individually wrapped pieces of crack cocaine.

         The officers arrested Smith. Initially, Smith denied ownership of the pill bottle, but subsequently admitted the cocaine was his and stated that he would, "take the charge."

         Smith was charged by bill of information with possession of cocaine with intent to distribute, and in due course was tried by a jury. The jury returned a verdict of guilty as charged. Smith was sentenced to serve five years imprisonment, two years without benefit of parole. The State filed a multiple offender bill of information. At the hearing on that bill, Smith admitted to being a second felony offender as part of a plea agreement. The trial court vacated the five year sentence and imposed a sentence of fifteen years in accordance with the plea agreement on the multiple offender bill of information. This appeal followed.

         DISCUSSION

         By the sole counseled assignment of error, defense counsel requests a review of the record for errors patent. Defense counsel complied with the procedures outlined by Anders v. California[1], as interpreted by this Court in State v. Benjamin[2]. Defense counsel's detailed review of the procedural history and the facts of the case indicate a thorough review of the record. Further, defense counsel moved to withdraw because she believed, after a conscientious review of the record, that there were no non-frivolous issues for appeal.

         As per State v. Benjamin, this Court has performed an independent, thorough review of the pleadings, minute entries, and the bill of information in the appeal record. We have determined that defense counsel correctly concluded the defendant's appeal is wholly frivolous for reasons set forth in this opinion. We find Smith was properly charged by bill of information with possession with the intent to distribute cocaine, a violation of La. R.S. 40:967, and the bill was signed by an assistant district attorney. Smith was present and represented by counsel during arraignment, trial, and at sentencing. The jury's verdict of guilty as charged is legal in all respects. Furthermore, a review of the trial transcript shows that the State introduced sufficient evidence to prove beyond a reasonable doubt that Smith was guilty of possession with the intent to distribute cocaine.

         Thereafter, the State filed a bill of information charging Smith with being a multiple offender. As part of a plea agreement, Smith admitted to being a second felony offender. He executed a written waiver of rights form, also signed by his counsel and the trial judge, which indicates he was advised of the allegations of the multiple bill to which he was pleading and the sentence which he would receive. In the executed form, he acknowledged the rights he was waiving by entering an admission, and confirmed that he was satisfied with his counsel's assistance. The transcript reflects that the trial court advised Smith of the rights he was waiving, and Smith verified to the court that he had signed and initialed the form after discussing it with his counsel.

         Our review of the allegations of the multiple bill reflects that less than ten years elapsed between the completion of the sentence for the listed prior felony and the date the crime that was committed. However, review of defendant's sentence reveals that the trial court failed to order that the first two years of the sentence be served without benefit of parole, as mandated by La. R.S. 40:967 B(4)(b) as it read at the time of commission of the crime.[3] Thus, the sentence imposed by the court is illegally lenient. However, as per La. R.S. 15:301.1A and State v. Williams[4], the sentence is deemed to have been imposed with these restrictions of benefits, even when the trial court fails to delineate them. Thus, no need exists for this court to correct the sentence.[5]

         PRO SE ASSIGNMENTS OF ERROR

         Smith has filed a pro se brief in which he assigns fourteen assignments of error for our review.

         1." The trial court erroneously denied petitioner Smith's "Motion to Suppress Evidence" and the alleged oral confession . . . based upon Officer Nunnery's hearsay testimony about what Officer Pichon did and say who were not subjected to confrontation and cross-examination."

         By this assignment, Smith essentially argues that the police lacked reasonable suspicion of criminal activity to perform an investigatory stop after observing the transaction between him and Ricky Brock. Smith argues that the police saw nothing more than U.S. currency being transferred, which he notes is not contraband.

         La. C.Cr.P. art. 215.1, which codifies the standard enunciated in Terry v. Ohio[6], allows an officer to perform an investigative stop where there is reasonable suspicion to believe that the individual has committed or is about to commit a crime. Reasonable suspicion is less than the probable cause needed to arrest a defendant; an officer "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity."[7]

         Courts have found either reasonable suspicion or probable cause existed after observing hand-to-hand transactions on numerous occasions.[8] Further, Officer Pichon had the authority to retrieve the prescription pill bottle discarded by Smith. The circumstances clearly support the officers' belief that they might have interrupted a narcotics transaction. We find there was probable cause to believe that the vial contained contraband and it was abandoned by defendant.

         The assignment of error lacks merit.

         2. "The trial court erroneous denied petitioner Smith's "Motion to Suppress" the alleged confession gave to Officer Pichon based upon the hearsay testimony of Officer Nunnery without proving a voluntarily and knowing waiver of my Miranda rights."

         By this assignment, Smith argues that there is a discrepancy between the State's Notice of Intent to Use Confession or Statements which identifies his statement as having been given to Officer Harold Nunnery, and the testimony by Officer Nunnery at the motion to suppress that it was Officer Pichon who advised defendant of his rights.

         La. C.Cr.P. art. 768 mandates that a defendant be given written notice of the intent to introduce a confession or inculpatory statement in evidence prior to trial. However, the article does not regulate the issuance of Miranda[9] warnings. From the testimony at trial, it is clear that both officers were present when Smith made the statement. The fact that Office Pichon, not Officer Nunnery, administered Miranda warnings does not create a discrepancy with the Notice of Intent. Furthermore, it is clear that Smith received adequate Miranda warnings and the fact that his statement was freely and voluntarily given was well established.

         3. "The trial court erroneous allowed Officer Nunnery to give hearsay testimony of Officer Pichon to establish probable cause to allow the State to use unconstitutionally obtained evidence and petitioner Smith's alleged confession to be used at trial without any opportunity to confront and cross-examine Officer Pichon at the Suppression hearing."

         In the argument on this assignment, Smith asserts that his constitutional right to confront witnesses against him was violated on the basis that hearsay testimony was admitted at the hearing on defense motions.[10] However, it has been recognized that hearsay rules do not apply in hearings on motions to suppress evidence.[11] Furthermore, in reviewing a trial court's ruling on a motion to suppress, the reviewing court looks to the totality of the evidence presented at the motion to suppress hearing and the trial.[12] Smith confronted both arresting officers at trial as to the legality of the search and seizure and the voluntariness of his statement; accordingly, the assignment of error lacks merit. Furthermore, trial counsel did not object to inadmissible hearsay or an infringement of his right to confrontation and, therefore the issue is waived on appeal.[13]

         4."The State's constructively amended the indictment to include possession with the intent to distribute one piece of the 32-rocks tested positive for the presence of cocaine and 31-piece were imitation thru testimony of the expert witness Brian Schultz in violation of due process."

         By this assignment Smith essentially argues that the State constructively amended the bill of information during trial to charge him with possession with intent to distribute an imitation or counterfeit controlled dangerous substance in contravention of La. R.S. 40:971.1. Smith argues that he was entitled to notice of the amended charges prior to the commencement of trial to properly prepare. The basis of Smith's claim rests with the fact that ...


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