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State v. Richardson

Court of Appeals of Louisiana, Fifth Circuit

September 4, 2019

STATE OF LOUISIANA
v.
ERIC RICHARDSON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-6969, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Zachary P. Popovich.

          COUNSEL FOR DEFENDANT/APPELLANT, ERIC RICHARDSON, Gwendolyn K. Brown DEFENDANT/APPELLANT, ERIC RICHARDSON In Proper Person.

          Panel composed of Judges Marc E. Johnson, John J. Molaison, Jr., and Robert M. Murphy, Ad Hoc

          ROBERT M. MURPHY, AD HOC JUDGE.

         On appeal, defendant challenges his multiple narcotics convictions. For the following reasons, we affirm defendant's convictions and sentences.

         Factual and Procedural History

         In October of 2016, Lisa Cassara, a Parole Officer with the Louisiana Department of Corrections, Office of Probation and Parole, contacted Detective William Whittington of the Narcotics Division of the Jefferson Parish Sheriff's Office ("JPSO") to report that one of her parolees – a convicted cocaine distributor named Eric Richardson – was frequenting a known "high crime area" in Metairie after curfew. Based upon this information, Detective Whittington initiated an investigation of Richardson including electronic and traditional surveillance by law enforcement officers and interviews with confidential informants.

         One of the informants described Richardson and his vehicle and stated that Richardson moved "large quantities" of heroin through Jefferson Parish so Detective Whittington decided to set up a controlled buy using the CI. On November 12, 2016, a team of narcotics enforcement officers from JPSO conducted surveillance of Richardson. Detective Gary Bordelon informed the team when Richardson drove away from his apartment in Kenner in the white Ford Explorer with temporary license plates as described by the CI. Detective Whittington, who was waiting with the CI, determined that the CI did not have any contraband in the CI's possession before interacting with Richardson.

         Detective Whittington observed Richardson arrive at the location where the CI had arranged to make the controlled buy. Once at the location, Detective Whittington observed Richardson meet and interact with the CI and witnessed, based on his training, education, and experience, what Detective Whittington believed to be a hand-to-hand drug transaction. After the interaction, Richardson left; the CI again met with Detective Whittington and provided Whittington with the heroin that the CI had purchased from Richardson.

         Immediately, Detective Whittington prepared an affidavit and search warrant for Richardson's residence and vehicle. Coincidentally, the officers learned during their investigation that there was an outstanding attachment for Richardson. Once the warrants were obtained, the officers approached Richardson outside of his residence with the intent to arrest him on the outstanding attachment. When they made their identity as law enforcement known, however, Richardson fled into his backyard and into his apartment. Although a struggle ensued, Detective Whittington ultimately detained Richardson and read him his rights under Miranda v. Arizona.[1]

         In the subsequent search of Richardson's residence and car pursuant to the warrant, including a small dirt area of the backyard specifically referred to by the CI, the officers recovered two plastic jars buried in the ground. In the first, there were approximately 78 grams of cocaine, 10 grams of heroin, 20 dosage units of Diazepam, and 5 dosage units of Tramadol. In the second, there were approximately 220 units of methamphetamine. Inside a backyard shed, the officers also recovered a leather satchel containing sandwich bags, a ceramic plate, and three digital scales.[2] Defendant was placed under arrest and read his Miranda rights; thereafter, defendant provided a statement to Detective Whittington admitting ownership of the narcotics and other items seized during the search.

         On December 15, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Richardson, with possession of cocaine between twenty-eight and two hundred grams, in violation of La. R.S. 40:967(F); possession with intent to distribute MDMA, in violation of La. R.S. 40:966(A); possession with intent to distribute heroin, in violation of La. R.S. 40:966(A); possession of Tramadol, in violation of La. R.S. 40:969(C); and possession of Diazepam, in violation of La. R.S. 40:969(C). On April 12, 2017, after receiving the scientific analysis of the contraband, the State filed a superseding bill of information amending count two to charge defendant with possession with intent to distribute methamphetamine, in violation of La. R.S. 40:967(A), rather than possession with intent to distribute MDMA. Defendant was re-arraigned on the superseding and amending bill and pled not guilty.

         On April 18, 2018, after a bench trial, the trial judge found defendant guilty as charged on all five felony counts.[3] On May 22, 2018, the trial court sentenced defendant to fifteen years imprisonment at hard labor for possession of cocaine between twenty-eight and two hundred grams; to fifteen years at hard labor for possession with intent to distribute methamphetamine; to twenty years imprisonment at hard labor for possession with intent to distribute heroin; to five years imprisonment at hard labor for possession of Tramadol; and to five years imprisonment at hard labor for possession of Diazepam.[4] The trial court further ordered defendant's sentences to be served concurrently with each other and to any other sentence defendant may be serving.

         On May 22, 2018, the State also filed a multiple offender bill of information alleging defendant to be a second felony offender. Defendant, after being advised of his rights, stipulated that he was a multiple felony offender. The trial court then vacated defendant's original sentence for his conviction for possession with intent to distribute heroin, and imposed an enhanced sentence under La. R.S. 15:529.1 of twenty-five years imprisonment at hard labor without benefit of probation or suspension of sentence. The trial court further ordered defendant's enhanced sentence to be served concurrently with his four original counts and recommended defendant for participation in any self-help, work release, re-entry, and substance abuse programs available through the Department of Corrections. Defendant now challenges his convictions.

         Discussion

         On appeal, defendant has filed a counseled brief with three assignments of error: first, the trial court erred by denying the motion to reveal the identity of the confidential informant; second, the trial court erred by denying the motion for an in camera inspection; and, third, the evidence is insufficient to support the misdemeanor charge. Further, defendant filed a pro se brief with two assignments of error: first, the evidence was insufficient to support his convictions and, second, the trial court erred in denying his motion to suppress evidence.

         Sufficiency of the Evidence

         When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id.; See also State v. Nguyen, 05-569 (La. App. 5 Cir. 2/3/06), 924 So.2d 258, 262. Thus, we will address defendant's pro se assignment of error regarding the sufficiency of the evidence first.

         In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

         In cases involving circumstantial evidence, the trial court must instruct the jury that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La. App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

         In this case, defendant was convicted of five counts of narcotics possession: possession of cocaine between twenty-eight and two-hundred grams; possession with intent to distribute methamphetamine; possession with intent to distribute heroin; possession of Tramadol; and possession of Diazepam. Although there are different elements required to support these five crimes, defendant only challenges the State's alleged failure to prove the element of possession beyond a reasonable doubt for each of the counts.

         In Louisiana, the element of possession may be established by showing defendant exercised either actual or constructive possession of the substance. State v. Lewis, 04-1074 (La. App. 5 Cir. 10/6/05), 916 So.2d 294, writ denied, 05-2382 (La. 3/31/06), 925 So.2d 1257. A person not in physical possession of the drug is considered to be in constructive possession of the drug, even though the drug is not in his physical custody, when it is under that person's dominion and control. Id. The key factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession are the defendant's knowledge that illegal drugs were in the area, his relations with a person found to be in actual possession, the defendant's access to the area where the drugs were found, evidence of recent drug use by the defendant, the existence of drug paraphernalia, and evidence that the area was frequented by drug users. Id.; State v. Manson, 01-159 (La. App. 5 Cir. 6/27/01), 791 So.2d 749, 761, writ denied, 01-2269 (La. 9/20/02), 825 So.2d 1156. "Mere presence in an area where drugs are found or mere association with the person in actual possession does not constitute constructive possession." State v. Jones, 04-1258 (La. App. 5 Cir. 4/26/05), 902 So.2d 426, 431. However, "[p]roximity to the drug, or association with the possessor, may establish a prima facie case of possession when colored by other evidence." Id.

         In the instant case, defendant's parole officer reported that his movements, which were electronically monitored, revealed that he was frequenting a high crime area and violating his curfew. Under surveillance by narcotics officers from JPSO, a confidential informant conducted a controlled buy of heroin from defendant, which gave the officers probable cause to obtain a search warrant for defendant's residence.[5] After being read his Miranda[6] rights and being informed that a search of the premises would be conducted, defendant admitted, "whatever you find is mine." The search disclosed approximately 78 grams of cocaine, 10 grams of heroin, 20 dosage units of Diazepam, 5 dosage units of Tramadol, and 221 units of methamphetamine buried in two plastic bottles in a small area of "disturbed dirt" ...


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