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State v. Obrien

Court of Appeals of Louisiana, Third Circuit

April 5, 2018

STATE OF LOUISIANA
v.
JERMAINE CHRISTOPHER OBRIEN A/K/A JERMAINE CHRISTOPHER O'BRIEN

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 16139-16 HONORABLE SHARON D. WILSON, DISTRICT JUDGE

          Annette Fuller Roach COUNSEL FOR DEFENDANT/APPELLANT: Jermaine Christopher Obrien a/k/a Jermaine Christopher O'Brien

          John Foster DeRosier, District Attorney Elizabeth Brooks Hollins, Brett Gaspard, and Jason Trevor Brown, Assistant District Attorneys COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.

          JOHN E. CONERY JUDGE

         Defendant, Jermaine Christopher Obrien a/k/a Jermaine Christopher O'Brien, was convicted of possession of a weapon by a convicted felon; attempted illegal use of a weapon in the presence of drugs; possession of a Schedule II controlled dangerous substance (cocaine) with intent to distribute; and possession of a Schedule II controlled dangerous substance (cocaine). He was adjudicated a fourth felony habitual offender and was ultimately sentenced under the habitual offender statute to serve forty years at hard labor for possession of a weapon by a convicted felon; twenty years at hard labor for attempted possession of a firearm in the presence of drugs; twenty years at hard labor for possession with the intent to distribute cocaine, and twenty years at hard labor for possession of cocaine, with each sentence was to run concurrently to the others.[1] For the following reasons, we affirm Defendant's convictions and sentences. We find a single error patent and remand that issue to the trial court for remediation.

         FACTS AND PROCEDURAL HISTORY:

         On June 14, 2016, at approximately 9:30 a.m., the Calcasieu Parish 911 Center received an emergency call from the resident of 412 N. Simmons Street indicating "he's a walking with that pistol and . . . he's scaring them girls, he got two girls over there . . . he's making them do what he want 'em [sic] to do." When questioned further about the man's name, the caller said, "Jermaine! He live [sic] across the street. That O'Brient [sic] little boy." The caller further stated, "He's walking out there just holding his pistol . . . and scaring them two girls, they [sic] backing up from him." When asked to describe what 'Jermaine' was wearing, the caller stated "[he] ain't [sic] got nothing but a pair of pants on, no shirt." She insisted she needed the narcotics squad because "that's [(drugs)] all that's over there." Corporal Benjamin Randolph and Corporal Bendy Falcon responded to the call at 409 North Simmons Street, the home of Jermaine O'Brien's parents.

         When they arrived, a truck was in the driveway with several occupants. Upon questioning, the occupants directed the officers to the back of the house. The occupants drove away shortly thereafter. When the responding officers rounded the corner to the back of the house, Corporal Randolph saw Defendant Jermaine O'Brien counting a stack of money. He was sitting with his back against a shed that was connected to the main house by a porch. Next to him, "within arm's reach, " was a HiPoint .40 caliber handgun. Defendant did not see Corporal Randolph at first.

         When he noticed Corporal Randolph, Defendant stood up. Because the handgun was within arm's reach of Defendant, Corporal Randolph drew his gun. Officer Falcon, who was also on scene, then told Defendant to get on the ground. Defendant did not comply. Instead, he gathered the money, stood up, and started walking toward the back door. When he reached the back door, Defendant began pacing back and forth. Finally, he dropped the money and knelt on the ground.

         Corporal Randolph secured the gun and gave it to Officer Falcon to clear. When clearing the gun, a bullet was found in the chamber and several bullets were found in the magazine, which had been loaded into the handgun.

         Corporal Randolph, who was familiar with Defendant from previous narcotics arrests and knew he was a convicted felon, placed Defendant under arrest for unlawful possession of the gun by a convicted felon. During a search of Defendant's person, five rocks of crack cocaine were found in Defendant's pockets. While handcuffed and after the crack cocaine was found, Defendant ran into the main residence and a taser was used to stop him when he began reaching toward the right leg of his pants. The officers then placed Defendant in the police vehicle. While walking to the police car, Defendant admitted to Corporal Randolph that "all of that's mine except for the gun." He explained: "Somebody from the driveway put the gun there." Because the shed had not yet been searched, Corporal Randolph interpreted this statement to mean only the crack cocaine found in Defendant's pockets belonged to Defendant.

         At some point during the arrest, a female, later identified as Defendant's girlfriend, walked out of the shed with four small children. When asked, Defendant's mother told the officers that Defendant did not live in their home but sometimes spent time in the shed. Suspicions aroused, the officers asked for and received written permission from Defendant's mother to search the shed.

         Upon entering the single room shed, the officers saw a table, chairs, a television, and several items of men's clothing. The officers testified that, based on their experience in other narcotics cases, they found pink packages that looked like packages of synthetic marijuana on the table. A digital scale and smaller clear plastic bags also containing what resembled synthetic marijuana were also found. Corporal Randolph testified that the small clear baggies resembled the packaging used for resale of narcotics. A metal cylindrical container containing a substance the officers believed was powder cocaine was found on the floor underneath the table. A measuring cup and fork with white powder residue on them, and a microwave plate covered in white powder were also found. Corporal Randolph testified that he had come across these types of items in previous narcotics arrests when someone was making crack cocaine from powder cocaine. By this time, the narcotics team had arrived and assisted in the search of the shed.

         As the officers continued their search, testimony at trial established that the officers found cigarillo cigar boxes, a cup containing marijuana, a second cup containing a bag of what officers believed to be powder cocaine, a teddy bear, and a backpack. The teddy bear had a hole in its back and inside the hole was a clear plastic bag of what was believed to be powder cocaine, another bag containing assorted pills, and a small quantity of white powder also believed to be powder cocaine. The backpack contained several pink packages of presumed synthetic marijuana, clear zip-lock bags, jeweler bags, [2] a grocery bag containing seven unopened packages of synthetic marijuana, and U.S. currency in varying denominations. The officers discovered an Airsoft BB gun, loose ammunition, and a 9mm round. A box of ammunition was located outside.

         One of the trained canines used by the officers alerted to the odor of narcotics coming from a silver Buick at the residence. The officers obtained a search warrant for the car. Although owned by Defendant's dad, officers were told that Defendant was the primary driver. In the car, the officers found a rock of crack cocaine on the floorboard, a cigarillo wrapper matching the boxes found in the shed, and a jewelry bag containing synthetic marijuana.

         The officers did not search Defendant's parents' home or their persons. Defendant did not enter the shed or handle the gun in the officers' presence that morning.

          The total amount of money discovered in the search (including the money Defendant was holding when officers arrived) was three thousand, five hundred and forty-six dollars ($3, 546.00). The money was in mixed denominations, which is indicative of drug sales according to Detective Nunez and Corporal Randolph. Ultimately, drug test results were introduced into evidence and confirmed that over 32 grams of powder cocaine, six rocks of crack cocaine, and 103.1 grams of synthetic marijuana were discovered and confiscated.

         At trial, Corporals Randolph and Falcon, Detective Jeremy Nunez with the Calcasieu Parish Sheriff's Office combined anti-drug team, Gabrielle Basone, a forensic chemist, Lieutenant Craig Desormeaux with the Lake Charles Police Department communications office, and Robert Broussard, an information technician for the Calcasieu Parish 911 Center testified. The recording of the 911 call was played for the jury.[3] The caller lived across the street from Mr. and Mrs. O'Brien and stated on the 911 recording that Jermaine, who "live [sic] across the street, that O'Brient [sic] little boy" was walking around in nothing but a pair of pants with a pistol, scaring two girls. She further insisted there were drugs "all over there", so the narcotics team needed to investigate.

         Detective Nunez described some of the contraband confiscated as "small foil zip packs" containing several grams of drugs, which are then subdivided into grams, placed in smaller baggies, and resold. The pink bags, called "bubble gum, " are usually fourteen-gram bags. They are then put into even smaller bags, called jewelry or jeweler bags, for sale to individual users. Detective Nunez explained that digital scales are used by drug dealers to divide drugs into smaller quantities for resale. He also testified that when searching a suspected drug dealer's space, it is normal to find multiple kinds of drugs stashed in various places.

         To determine whether an individual is a user or a distributor, narcotics detectives look at the totality of the situation and consider things like the quantity of drugs found, whether resale items (like a scale and small baggies) or individual use paraphernalia (like a pipe) is present, the type of drugs found, and the amount of cash on hand.

         Detective Nunez explained to the jury the difference between users, mid-level dealers, high-level dealers, and cartels. He defined cartels as people dealing more than one kilogram of drugs in any given transaction, and they are usually located out of state. High-level dealers were characterized as people who deal between 28 grams and one kilogram. Typically, they are outsourcing from out of state for purchase. Mid-level dealers were defined as having 3.5 grams to half an ounce, which they "break [] down, manufacture cocaine or break it down into powder cocaine, [and] they'll cut the powder cocaine to stretch it." Dealers typically have more than one type of drug on hand as opposed to users, who generally only possess one type. A user is someone who buys one or two rocks or up to a gram of drugs in any given day.

         In addition to considering how many different drugs are present and how much of each drug is found, investigators also consider the type(s) of paraphernalia found at the scene. Detective Nunez explained that a user will generally have personal-use paraphernalia like crack pipes and snorting straws, while a dealer will have packaging and weighing materials. Dealers also may have false containers like the teddy bear, or cooking materials like the microwave, measuring cup, and fork.[4]

         The officers did not find any individual-use devices on Defendant, in the shed, or in the car. Detective Nunez told the jury that he believed Defendant was a dealer who was manufacturing crack cocaine in the shed. The digital scale, the amount of powder cocaine, the measuring cup, the microwave with its cocaine covered plate, the lack of personal use paraphernalia, the crack rocks in his pocket, the gun, and the cash all formed the basis for his conclusion.

         The defense did not call any witnesses. Defendant's counsel introduced certified copies of minutes from 1993 convictions of Defendant's parents for distribution of cocaine. The defense pointed out to the jury that the home, shed, and vehicle belonged to Defendant's parents. He further pointed out that neither of Defendant's parents nor their residence had been searched by investigating officers.

         Finally, the parties stipulated to the introduction of certified copies of fingerprints and the minutes of January 24, 2013 convictions of distribution of a Schedule II controlled dangerous substance and possession of a Schedule II controlled dangerous substance (both cocaine), and that Defendant was the same person as the individual convicted on January 24, 2013.

         The jury convicted Defendant of: 1) possession of a weapon by a convicted felon, 2) attempted illegal use of a weapon in the presence of drugs, 3) possession of a Schedule II Controlled Dangerous Substance with an intent to distribute, and 4) possession of a Schedule II Controlled Dangerous Substance.

          The trial court imposed sentences on each charge on March 3, 2017. The State then filed a habitual offender bill as provided by La.R.S. 15:529.1, which was heard on August 10, 2017. At the habitual offender hearing, the trial court found Defendant to be a fourth felony habitual offender. It also found deviation from the mandatory life sentence was appropriate. At the time Defendant was billed as a fourth felony habitual offender, La.R.S. 15:529.1(A)(4)(c) mandated a life sentence without benefit of parole, probation, or suspension of sentence "[i]f the fourth felony and the two prior felonies are felonies defined as . . . a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more."

         In 2017, the Louisiana legislature revised the habitual offender sentencing structures and removed the life sentence requirement for fourth felony offenders with underlying drug convictions. The amendment became effective on November 1, 2017. Even though not yet in effect, the trial court sentenced Defendant in accordance with the November 1, 2017 sentencing guidelines. The trial court found the legislative re-structuring was "a legislative declaration that the [life] sentence would be excessive for someone with . . . [only] drug-related priors." The trial court explained that "there is a legitimate goal in society to punish someone who is a chronic drug offender" but further explained that "a punishment should be commensurate with someone's culpability and fare [sic] under the circumstances." The trial court stated, "this Court is required under [its] oath to deviate from the mandatory sentence."

         The trial court vacated its March 3, 2017 sentences and re-sentenced Defendant to forty years at hard labor for possession of a weapon by a convicted felon; twenty years at hard labor for attempted possession of a firearm in the presence of drugs; twenty years at hard labor for possession with the intent to distribute cocaine; and twenty years at hard labor for possession of cocaine.[5] The court ordered each sentence to run concurrently with each other and that Defendant be given credit for any time served since June 14, 2016, for these offenses. The court recommended Defendant participate in any treatment or life skills programs available during his incarceration.

         ASSIGNMENTS OF ERROR:

1. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Jermaine O'Brien was in actual or constructive possession of a firearm on or about June 14, 2016.
2. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that on or about June 14, 2016, Jermaine O'Brien attempted to use, possess, or have under his immediate control a firearm, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance.
3. The evidence admitted at the trial of this case, when viewed under the Jackson v. Virginia standard, was insufficient to prove beyond a reasonable doubt that Jermaine O'Brien was in actual or constructive possession of cocaine with the intent to distribute the cocaine, on or about June 14, 2016.
4. Multiple punishment for both possession of cocaine with the intent to distribute and possession of cocaine arising from the same act or transaction is a violation of the Double Jeopardy Clause.
5. Counsel rendered ineffective assistance which prejudiced Appellant by permitting the introduction of inadmissible hearsay and evidence in violation of Appellant's right of confrontation, and in failing to object to the State's improper closing and rebuttal arguments.

         ERRORS ...


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