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State v. Hankton

Court of Appeals of Louisiana, Fifth Circuit

July 31, 2018

STATE OF LOUISIANA
v.
JULIUS HANKTON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-1798, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long Andrew Decoste Douglas E. Rushton

          COUNSEL FOR DEFENDANT/APPELLANT, JULIUS HANKTON Bruce G. Whittaker

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson

         CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER

         MEJ

         FHW

         JGG

          MARC E. JOHNSON JUDGE

         Defendant/Appellant, Julius Hankton, appeals his convictions and sentences from the 24th Judicial District Court, Division "L". For the following reasons, we affirm Defendant's convictions. As to the sentences ordered on each of the six counts, we affirm the term of the sentences imposed, vacate the requirement that each sentence is to be served consecutively, amend the sentences to order that all sentences are to be served concurrently, amend the sentence on count one to delete the parole restriction; and, as amended, we affirm the sentences on each count. Additionally, we remand the matter with instructions.

         FACTS AND PROCEDURAL HISTORY

         On May 1, 2015, the Jefferson Parish District Attorney filed a bill of information charging Defendant with one count of possession with intent to distribute heroin, in violation of La. R.S. 40:966(A) (count one), four counts of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (counts two, three, five, and six), and one count of possession of oxycodone, in violation of La. R.S. 40:967(C) (count four).[1] The six separate counts for which Defendant was charged all arose out of a single search warrant executed on March 19, 2015 at defendant's residence located at 1602 Clearview Parkway, Apartment A, in Metairie, Louisiana during which law enforcement seized a significant amount of heroin packaged for sale, drug paraphernalia, multiple cell phones, a large amount of cash, and four guns. Defendant pleaded not guilty to the counts at his arraignment on May 19, 2015.

         On October 15, 2015, Defendant's motions to suppress statement and evidence were denied by the trial court. Trial commenced before a twelve-person jury on January 18, 2017.

         At trial, Gregory Morrow, a recovering heroin addict, testified that in 2014 he was working with the Federal Bureau of Investigations (FBI) as a confidential informant. While working with the FBI, Morrow purchased heroin from Julius Hankton-Defendant-known to him as "Ju," on November 7, 19, and December 5, 2014, in quantities of one-half to one gram for which he would pay approximately $50 to $100. Morrow testified that he would call Defendant to set up the drug transaction and that his phone conversations were recorded by the FBI.[2] He explained that prior to meeting Defendant, he would be searched to verify that he did not have any drugs in his possession before receiving the money from law enforcement to purchase the drugs and would then engage in the hand-to-hand drug transaction with Defendant while under surveillance of law enforcement.

         A video of the November 7, 2014 drug transaction between Defendant and Morrow was played for the jury. On the video, a vehicle driven by Defendant is shown pulling up to Morrow's vehicle where the passenger of Defendant's vehicle then hands Morrow a gram of heroin in exchange for $100. A second purchase made by Morrow on November 19, 2014, from Defendant was for half a gram of heroin and was also recorded on video; however, Morrow testified that the video did not capture Defendant, who had given him the heroin and was out of sight of the surveillance camera. Also, on December 5, 2014, Morrow made a third purchase of heroin from Defendant near the Brother Martin football field, which was not captured on video because he was instructed by Defendant to exit his vehicle and enter Defendant's vehicle where Defendant sold him the heroin out of sight from the surveillance camera positioned in Morrow's vehicle.

         Stacey Taranto of the Jefferson Parish Sheriff's Office testified that in 2014 and 2015 she was a member of the narcotics unit working as a Task Force Officer with the FBI. Officer Taranto testified that the task force she participated in was a multi-jurisdictional unit comprised of members of local law enforcement and FBI agents in the greater New Orleans area who conducted narcotics investigations. She further explained that she conducted surveillance of the controlled buys testified to by Morrow and that, in March of 2015, she participated in the execution of a search warrant at Defendant's residence: 1602 Clearview Parkway, Apartment A, in Metairie, Louisiana.

         Officer Taranto testified that during the November 19, 2014 controlled buy, she observed a silver BMW pull into the meeting location set up between Defendant and Morrow, where she observed a black male wearing a black sweatshirt with the letters "O-B-E-Y" written on it, exit the vehicle he was driving and conduct a hand-to-hand drug transaction with Morrow. She further explained that during her surveillance of the drug transactions conducted on November 19, 2014 and December 5, 2014, she was able to obtain the license plate numbers from the vehicles driven by Defendant and discovered that the vehicle used in November was registered to a female by the name of Jasmine Chaney- Defendant's girlfriend-who resided at 1602 Clearview Parkway, Apartment A, in Metairie, Louisiana, and the vehicle used in December 2014 was a rental car which had been rented under the name Jasmine Chaney. Officer Taranto testified that she performed a traffic stop of the vehicle following the December 5, 2014 drug transaction and confirmed Defendant as the driver of the vehicle. A search of the vehicle driven by Defendant revealed a black sweatshirt with the letters "O-B-E-Y" written on the front, a cell phone, [3] and two small bags of heroin.

         Special Agent Christopher Bauer of the New Orleans Division of the FBI and member of the Violent Crimes Task Force participated in the controlled buy on November 19, 2014, during which he observed a silver BMW pull into the parking lot at the meeting location alongside Morrow's vehicle. He then observed a black male wearing a sweatshirt with the letters "O-B-E-Y" written across the front exit the BMW and interact with Morrow. Special Agent Bauer also confirmed his participation in the stop of the vehicle Defendant was driving after the December 2014 controlled buy. Special Agent Bauer indicated that Defendant was arrested at the time of the stop but was subsequently released.

         Special Agent Bauer testified that subsequent to Defendant's release, a warrant was obtained for the search of Defendant's apartment. During the execution of the search warrant, Defendant was detained, [4] and a search of his pants[5] revealed 26 small plastic baggies containing heroin and eight pills that tested positive for oxycodone.[6] Additionally, a Glock 17 pistol, Glock 29, Glock 21, an AK-47 rifle, ammunition, multiple cell phones, a scale, and over $20, 000 in cash were seized during the search of the master bedroom in which Defendant's pants were located. Upon discovery of the evidence, Defendant admitted his ownership of "all the stuff in the house."

         FBI Special Agent Crystal Bender, also of the New Orleans Violent Crimes Task Force, likewise testified regarding the various monitored phone conversations between Morrow and Defendant during which the narcotics transactions were arranged, as well as the monitored video recordings of the controlled buys that took place. Agent Bender explained that surveillance of the Clearview apartment was also conducted during which Defendant was seen entering and exiting the residence. At one time, Defendant was seen exiting the apartment, approaching the driver of a white sedan, leaning inside the vehicle, and retreating back into the apartment after a couple of seconds.

         Agent Bender further testified regarding a controlled buy between Defendant and an unnamed confidential informant on May 8, 2014, which was recorded on video surveillance and played for the jury. Agent Bender identified Defendant from the video and confirmed that in exchange for $100, the confidential informant received .31 grams of heroin. She explained that the quantity received was less than the amount paid. A recorded phone conversation between Defendant and the confidential informant was played during which Defendant explained that the reason it was "short" was because it was "bricked up," meaning it had been cut off of a "solid piece."

         Sergeant Joshua Collins, an expert in the field of quantity, packaging, pricing, and distribution of narcotics, testified that the 26 bags of heroin individually packaged within a larger plastic bag weighing approximately 21 grams, the $20, 000, and the scale all found in Defendant's apartment are indicative of street-level distribution.

         David Cox, an expert in forensic analysis and identification of DNA, testified that a DNA sample was obtained from one of the firearms-the AK-47 rifle-found in Defendant's apartment which was consistent with being a mixture of DNA from two individuals, for which Defendant was excluded as a contributor. However, Mr. Cox testified that the findings of the testing did not necessarily indicate Defendant had never handled the AK-47, just that his DNA was not contained on the swab collected from the gun.

         A stipulation was accepted by the parties that Sergeant Joel O'Lear, an expert in fingerprint examination and comparison, if called, would testify that he compared State's Exhibit 1-the latent fingerprint card of Defendant-to State's Exhibits 2 and 3-certified conviction packets for Defendant-and concluded that Defendant's fingerprints matched those contained on the certified conviction packets, establishing the prior felonies as alleged in counts two, three, five, and six.

         At the conclusion of the trial, the following day, the jury found Defendant guilty as charged. Prior to sentencing Defendant on March 13, 2017, the trial court denied Defendant's oral motion for new trial. After a waiver of delays, the trial court sentenced Defendant on count one, to 50 years imprisonment at hard labor, with the first ten years to be served without benefit of probation, parole, or suspension of sentence; on each of counts two, three, five, and six, to 20 years imprisonment at hard labor to be served without benefit of probation, parole, or suspension of sentence; and on count four, to two years imprisonment at hard labor. The trial court further ordered Defendant's sentences on all counts to be served consecutively to each other.

         On July 19, 2017, Defendant filed a motion for out-of-time appeal, which was granted by the trial court on July 24, 2017. The instant appeal follows.

         ASSIGNMENTS OF ERROR

         On appeal, Defendant alleges 1) the trial court improperly impinged upon his right of confrontation, and 2) the trial court imposed an unconstitutionally excessive sentence.

         LAW AND ANALYSIS

         Right of confrontation

         In his first assignment of error, Defendant argues that because his primary accuser was a named cooperating informant, the trial court committed reversible error when it prohibited him from directly confronting and cross-examining Morrow-the informant-regarding the full scope of bias and inducement under which his testimony was offered to the jury. Thus, given the importance of the informant's testimony, Defendant maintains that the error was not harmless.

         The State asserts that Defendant has failed to preserve this issue for appeal. Nevertheless, the State maintains Defendant was fully able to cross-examine Morrow on issues related to his credibility absent a few questions to which objections were properly sustained. Regardless, the State contends any alleged error claimed by Defendant would be harmless in this case.

         The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to confront the witnesses against him. The Confrontation Clause of the Louisiana Constitution specifically and expressly guarantees the accused the right "to confront and cross-examine the witnesses against him." La. Const. Art. I, § 16; State v. Robinson, 01-273 (La. 5/17/02); 817 So.2d 1131, 1135. Confrontation not only means the ability to confront the witnesses physically but also to secure for the opponent the opportunity of cross-examination, which is its main and essential purpose. Robinson, supra. Cross-examination is the principal way to test the believability and truthfulness of the testimony, and it has traditionally been used to impeach or discredit the witness. Id.; State v. Williams, 04-608 (La.App. 5 Cir. 11/30/04); 889 So.2d 1093, 1100, writ denied, 05-0081 (La. 4/22/05); 899 So.2d 559.

         Here, Defendant maintains that, although Morrow testified regarding three separate instances where Defendant sold him heroin, not all of the transactions were captured on video surveillance or by the surveilling officers themselves, and therefore, the jury was required to rely on Morrow's uncorroborated testimony. Thus, given the importance of Morrow to the State's case, Defendant asserts the trial court erred in precluding him from cross-examining Morrow regarding the payments he received from law enforcement for his participation as an informant and the extent of the uncharged criminal wrongdoing offered to him in exchange for his cooperation.

         Specifically, Defendant sets forth two instances during his cross-examination of Morrow where the trial court allegedly impinged on his Sixth Amendment right. The first is the following exchange during which he was allegedly precluded from questioning Morrow regarding other narcotics transactions he had previously engaged in-other than those in this case-and which law enforcement elected to "look the other way[:]"

DEFENSE: So - and by the way, not only were you not arrested for selling heroin, but you ...

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