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State v. Howard

Court of Appeals of Louisiana, First Circuit

September 21, 2018

STATE OF LOUISIANA
v.
KENTREAL JARBAR HOWARD

          Appealed from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket Number 718, 291 c/w 744, 470 Honorable John R. Walker, Judge Presiding

          Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana Counsel for Appellee State of Louisiana

          Cynthia K. Meyer New Orleans, Louisiana Counsel for Defendant/Appellant Kentreal Jarbar Howard

          Kentreal Jarbar Howard Kinder, Louisiana Pro Se

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          GUIDRY, J.

         The defendant, Kentreal Jarbar Howard, was charged by bill of information with possession with intent to distribute cocaine, a violation of La. R.S. 40.967(A)(1). See also La R.S. 40:964, Schedule II(A)(4). He pled not guilty and, after a trial by jury, was found guilty as charged. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The State filed a habitual offender bill of information, and the defendant pled not guilty to the allegations therein. After a hearing, the defendant was adjudicated a fourth-felony habitual offender. He was sentenced to thirty years imprisonment at hard labor without the benefit of probation or suspension of sentence.[1] He now appeals, filing one counseled and two separate pro se briefs (pro se brief one and pro se brief two). In his counseled brief, the defendant assigns error to the denial of his motion for continuance to appoint a sanity commission, the sufficiency of the evidence, and the habitual offender adjudication. In both of his pro se briefs, he argues that his constitutional rights were violated due to the inability to confront Agent Joseph Renfro. In pro se brief one, the defendant further assigns error to the constitutionality of the search and seizure and other challenges to the admission of evidence. In pro se brief two, he further asserts that the State committed a Brady violation and prosecutorial misconduct.[2] For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.

         STATEMENT OF FACTS

         On April 1, 2015, Lieutenant Brelon Yelverton and Sergeant Kyle Bergeron of the Terrebonne Parish Sheriffs Office (TPSO) warrants division were patrolling the area of Carlos Street in an attempt to locate Joseph Howard, who lived in the area. As they approached 317 Carlos Street, Joseph Howard's known address, a gray Dodge Charger was being driven away from the same location. They questioned an individual who was outside in the yard at the time, and the subject indicated that Joseph Howard had just left in the vehicle. The officers pursued the vehicle and followed it as it entered the Family Dollar Store parking lot, located at 7468 Main Street, at approximately 10:15 a.m. After the driver parked the Dodge Charger, the officers exited their marked unit. Lieutenant Yelverton approached the driver's door and asked the driver for his driver's license, as Sergeant Bergeron approached the passenger side of the vehicle.

         While the driver did not provide his driver's license, Sergeant Bergeron recognized him as Kentreal Howard (the defendant), who was also identified by other individuals at the scene, and known as "Kenny Boo." The passenger, Noel Durkins, who provided his driver's license or identification card, exited the vehicle as he was being questioned, but suddenly reentered the vehicle. As the passenger door remained open, Durkins leaned in and grabbed a black bag that was partially unzipped out of the passenger compartment of the vehicle. The officers removed Durkins from the vehicle, and as Durkins threw the bag on the ground, the zipper loosened. The bag landed at the back of the vehicle, and Lieutenant Yelverton placed his foot on the bag as he handcuffed Durkins. As Lieutenant Yelverton addressed Durkins, Sergeant Bergeron picked up the bag and placed it on the trunk of the vehicle. Lieutenant Yelverton instructed the defendant to step back and explained to him that he did not need to be concerned, as they had witnessed everything that happened regarding Durkins' actions.

         Lieutenant Yelverton continued to restrain Durkins as the officers observed the contents of the bag, which consisted of several clear baggies that contained rock-like and white powdery substances.[3] As Sergeant Bergeron informed the defendant that he was going to be detained, the defendant quickly grabbed the bag from the trunk and took flight. Some of the contents fell out of the bag, and Sergeant Bergeron pursued the defendant on foot as he ran behind the Family Dollar Store. Lieutenant Yelverton remained with Durkins and the evidence that had fallen on the ground.[4]

         SUFFICIENCY OF THE EVIDENCE

         In counseled assignment of error number two, the defendant argues that the evidence is insufficient to support the verdict of possession with intent to distribute cocaine. He notes that the evidence shows that Durkins, the passenger, had the black bag of cocaine in his possession and threw it on the ground during police questioning. The defendant further notes that there was eyewitness testimony indicating that the police were being aggressive with the defendant and claims that he knocked the black bag off of the trunk of the car in an act of desperation, claiming that the video does not support police testimony that he grabbed the bag and ran. He argues that the evidence presented by the State failed to refute the possibility that the defendant swatted the bag off of the car in an attempt to destroy the evidence. The defendant argues that a review of the record as a whole indicates that the State failed to prove beyond a reasonable doubt that he had the specific intent to possess with intent to distribute cocaine in this case.

         When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal. See State v. Hearold, 603 So.2d 731, 734 (La. 1992).

         A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See La. CCr.P. art. 821(B); State v. Ordodi, 06-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded. La. R.S. 15438. State v. Wright, 98-0601, p. 2 (La.App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 00-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987).

         To support a conviction for possession with intent to distribute, the State had to prove beyond a reasonable doubt that the defendant: 1) possessed the controlled dangerous substance; and 2) had an intent to distribute the controlled dangerous substance. La. R.S. 40;967(A)(1); State v. Young, 99-1264, p. 10 (La.App. 1st Cir. 3/31/00), 764 So.2d 998, 1006. The State is not required to show actual possession of the narcotics by a defendant in order to convict; constructive possession is sufficient. A person is considered to be in constructive possession of a controlled dangerous substance if it is subject to his dominion and control, regardless of whether or not it is in his physical possession. Also, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. However, the mere presence in the area where narcotics are discovered or mere association with the person who controls the drug or the area where it is located is insufficient to support a finding of constructive possession. State v. Smith, 03-0917, p. 6 (La.App. 1st Cir. 12/31/03), 868 So.2d 794, 799. Factors considered in determining whether or not a defendant exercised dominion and control over a drug include: a defendant's knowledge that illegal drugs are in the area; the defendant's relationship with any person found to be in actual possession of the substance; the defendant's access to the area where the drugs were found; evidence of recent drug use by the defendant; the defendant's physical proximity to the drugs; and any evidence that the particular area was frequented by drug users. State v. Harris, 94-0696, pp. 3-4 (La.App. 1st Cir. 6/23/95), 657 So.2d 1072, 1075, writ denied, 95-2046 (La. 11/13/95), 662 So.2d 477.

         It is well settled that intent to distribute may be inferred from the circumstances. Factors useful in determining whether the State's circumstantial evidence is sufficient to prove intent to distribute include: (1) whether the defendant ever distributed or attempted to distribute illegal drugs; (2) whether the drug was in a form usually associated with distribution; (3) whether the amount was such to create a presumption of intent to distribute; (4) expert or other testimony that the amount found in the defendant's actual or constructive possession was inconsistent with personal use; and (5) the presence of other paraphernalia evidencing intent to distribute. In the absence of circumstances from which an intent to distribute may be inferred, mere possession of drugs is not evidence of intent to distribute unless the quantity is so large that no other inference is reasonable. Smith, 03-0917 at 7-8, 868 So.2d at 800.

         Sergeant Bergeron testified that after he placed the bag on the trunk of the defendant's vehicle and observed its contents, he decided to detain the defendant despite the officers' initial statements to the defendant that he was not in any trouble. Sergeant Bergeron explained that while the defendant was not yet under arrest, he was being detained as a large amount of suspected cocaine was involved, as the defendant was the driver of the vehicle, and because the investigation was on-going. Sergeant Bergeron further testified that once the defendant grabbed the bag off of the back of the vehicle and fled, it immediately became apparent that he had knowledge of its contents and was directly involved in the transport and possible future sale and distribution of the contents of the bag. Sergeant Bergeron yelled at the defendant, telling him to stop and that he was under arrest, as he pursued the defendant in a foot chase. He then deployed the taser to the defendant's upper back as they approached the corner of the Family Dollar Store building. The tasing momentarily effected the defendant as he and Sergeant Bergeron landed on the ground during a brief scuffle. The defendant was able to escape Sergeant Bergeron's grasp, regain his footing, and flee on foot. At that point, Sergeant Bergeron recovered the bag from the ground and picked up the individual baggies of rock-like and a white powdery substance that had fallen along the trail from the trunk to the side of the store as the defendant escaped.

         Captain Derrick Collins, of the TPSO narcotics division, testified as an expert in the packaging and distribution of street level narcotics. Captain Collins was not involved in the investigation, but observed and assessed the evidence collected in this case. He noted that the consistency of the evidence appeared to have dissipated as a result of being smashed. He noted that crack cocaine is sold in dosage units, that each dosage unit consisted of .20 grams, and that the evidence consisted of at least 500 dosage units, with a street value of $20 each. The crime lab report indicates the cocaine in evidence weighed 34.86 grams. Considering the amount of cocaine in evidence and the sixteen plastic baggies, Captain Collins concluded that the case involved possession with the intent to distribute as opposed to personal use.

         Jewel Vergin knew the defendant, as they grew up together in the same neighborhood. On the day in question, as Vergin was exiting the Family Dollar Store on West Main Street, she saw the defendant's vehicle enter the parking lot followed by a police car. As Vergin approached her vehicle, she asked the defendant, who had parked next to her, whether or not he was okay. At that point, the defendant asked Vergin to inform the police of his real name. Vergin testified that the defendant's nickname was "Kenny Boo," that he wanted the police to be aware of his legal name, and that she complied with his request. Vergin saw, but did not know the passenger who was in the defendant's vehicle at the time. After informing the police of the defendant's name, Vergin decided to wait in her vehicle to make sure that the defendant was okay. She observed the passenger of the defendant's vehicle as he kept getting out of the car, as the police ordered him to stay in the car. After the passenger ignored orders to stay in the car, the police then instructed him to remain outside of the vehicle. She continued to observe as the passenger leaned or stood next to the car, and saw a bag fall "from his [the passenger's] pants leg." She noted that the officer picked up the slightly opened bag and placed it on the trunk of the defendant's vehicle.

         According to Vergin, at that time the defendant had his hands up in a "freeze" position as he made statements indicating that the bag did not belong to him and that he did not have anything to do with it. Vergin further testified, "And at this point Kentreal seem like he was, you know, agitated, you know, aggravated, and I guess the police officer thought that he was going to run, so he kind of was very aggressive ~ I ~ my opinion." She further admitted that the defendant seemed nervous at this point. She indicated that the police attempted to handcuff the defendant by positioning him against the trunk of the vehicle. She became nervous as the police called for backup while the defendant continued to declare his innocence. She added, "But I guess Kentreal felt that he [the police officer] wasn't believing what he was saying, and he knocked the bag off of his car." She testified that the defendant then ran toward the other side of the Family Dollar Store, that the officer pursued him, and that other police units arrived after the defendant fled on foot from the scene. When specifically asked if the defendant ever grabbed the bag, Vergin testified, "No, not that I can remember. No." She further explained, "No, because the police officer had him on the back of the car in an arresting position[, ]" when he knocked the bag off of the vehicle. She denied seeing anything in the defendant's hands as he fled from the scene.

         The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir. 1984). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369, cert, denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261, p. 6 (La.App. 1st Cir. 9/25/98), 721 So.2d 929, 932.

         The verdict rendered herein indicates that the jury inferred possession with the intent to distribute in this case. As noted, the defendant argues on appeal that he knocked the evidence off of the trunk of his vehicle in an attempt to destroy the evidence, denying that he actually possessed it with the intent to later distribute it. However, regardless of whether the defendant quickly grabbed and dropped, or simply knocked the evidence to the ground, the jury could have reasonably inferred joint constructive possession in this case. Not only was the bag initially in the defendant's vehicle and therefore within his access, the defendant's actions showed that he had knowledge of its contents and that his physical proximity was sufficient to remove the bag from the trunk of the vehicle. The expert testimony presented at trial indicated that a large amount of cocaine with a significant street value was recovered in this case. Further, the empty plastic baggies were an indication that the evidence would ultimately be repackaged or additional drugs obtained for distribution. It ...


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