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
COUNSEL FOR DEFENDANT/APPELLANT, ERIC RICHARDSON, Gwendolyn
K. Brown DEFENDANT/APPELLANT, ERIC RICHARDSON In Proper
composed of Judges Marc E. Johnson, John J. Molaison, Jr.,
and Robert M. Murphy, Ad Hoc
M. MURPHY, AD HOC JUDGE.
appeal, defendant challenges his multiple narcotics
convictions. For the following reasons, we affirm
defendant's convictions and sentences.
and Procedural History
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
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.
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.
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
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. 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.
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.
April 18, 2018, after a bench trial, the trial judge found
defendant guilty as charged on all five felony
counts. 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. The trial court
further ordered defendant's sentences to be served
concurrently with each other and to any other sentence
defendant may be serving.
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.
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.
of the Evidence
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.
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).
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.
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.
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.
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. After being read his
Miranda 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" ...