Louisiana Case Law
STATE v. SMITH, 2006 KA 0820 (La.App. 1 Cir. 12-28-06) STATE OF LOUISIANA v. GARY SMITH. No. 2006 KA 0820. Court of Appeal of Louisiana, First Circuit. December 28, 2006.
On Appeal From The Seventeenth Judicial District Court (Number 406581), Parish Of Lafourche State Of Louisiana Honorable Ashly Bruce Simpson, Judge.
Steven M. Miller, Thibodaux, Louisiana, Counsel for Plaintiff/Appellee, State of Louisiana.
Katherine M. Franks, Slidell, Louisiana, Counsel for Defendant/Appellant, Gary Smith.
Gary Smith, St. Gabriel, Louisiana, Pro Se.
BEFORE: KUHN, GAIDRY, AND WELCH, JJ.
Disposition: ORIGINAL CONVICTION AMENDED TO DISTRD3UTION OF MARIJUANA AND, AS AMENDED, THE CONVICTION IS AFFOIMED. SENTENCE VACATED AND REMANDED FOR SENTENCING ON AMENDED JUDGMENT OF CONVICTION.
WELCH, J. dissents with reasons.
KUHN, J.
The defendant, Gary Smith, was originally charged by bill
of information with distribution of marijuana in violation
of La. R.S. 40:966. He pleaded not guilty. On February 2,
2005, the state amended the bill of information to
additionally charge the defendant as a second or subsequent
offender under La. R.S. 40:982 alleging he had previously
been convicted of distribution of methamphetamine,
possession of marijuana, possession with intent to
distribute cocaine and possession with intent to distribute
diazepam. The defendant was rearraigned and entered a plea
of not guilty to the amended charge. Following a trial by
jury, the defendant was convicted as charged. He moved for a
new trial and post verdict judgment of acquittal. The trial
court denied both motions. The defendant was sentenced to
imprisonment at hard labor for twenty years. The sentence
was ordered to be served concurrently with a term of
imprisonment the defendant was then serving on a parole
revocation in the 32nd Judicial District Court, under docket
number 240356.
The defendant now appeals, filing pro se and counseled
briefs. We vacate the defendant’s conviction and sentence
for the second or subsequent offense distribution of
marijuana. We order the entry of a conviction for the
lesser offense of distribution of marijuana in violation of
La. R.S. 40:966. The case is remanded to the trial court
for sentencing on the modified judgment of conviction.
FACTS
On July 2, 2004, in connection with an undercover operation
targeting street-level drug dealers, officers Jeff
Chamberlain and Steven Frechou of the Thibodaux Police
Department Narcotics Division purchased two ounces of
marijuana from Tony Smith. Tony Smith was immediately
arrested and charged with distribution of marijuana. The
defendant, Tony’s brother, who arrived in the area and
delivered the marijuana to Tony immediately prior to the
sale, was also arrested and charged with distribution of
marijuana. Because he had prior drug convictions, the
defendant was charged and convicted as a second or
subsequent offender under La. R.S. 40:982.
SUFFICIENCY OF THE EVIDENCE
In cases such as this one, where the defendant has raised
issues on appeal both as to the sufficiency of the evidence
and as to one or more trial errors, the reviewing court
should preliminarily determine the sufficiency of the
evidence before discussing the other issues raised on
appeal. State v. Hearold, 603 So.2d 731, 734 (La. 1992). The
sufficiency issue must be decided first because a finding
of insufficient evidence to support the guilty verdict bars
the retrial of a defendant based on the constitutional
protection against double jeopardy. Thus, all other issues
would be rendered moot. State v. Davis, 01-3033, pp. 2-3
(La.App. 1st Cir. 6/21/02), 822 So.2d 161, 163. Accordingly,
we will first address the sufficiency of the state’s
evidence.
The defendant does not challenge the sufficiency of the
state’s evidence presented as proof of his prior
convictions. Instead, the crux of the defendant’s
sufficiency argument is that the state failed to prove that
he participated in any way in the sale of the marijuana to
the undercover officers. The defendant asserts the state
failed to present any credible evidence connecting him with
the transaction. He argues the testimony of the officers
was incredible and was insufficient to meet the state’s
burden of proving his guilt beyond a reasonable doubt.
The standard of review for the sufficiency of the evidence
to uphold a conviction is whether, when viewing the
evidence in the light most favorable to the prosecution, a
rational trier of fact could conclude the state proved the
essential elements of the crime and the defendant’s
identity as the peipetrator of that crime beyond a
reasonable doubt. See La. Code Crim. P. art. 821; State v.
Johnson, 461 So.2d 673, 674 (La.App. 1st Cir. 1984). The
standard of review of Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979), incorporated in La.
C.Cr.P. art. 821 is an objective standard for testing the
overall evidence, both direct and circumstantial, for
reasonable doubt. When analyzing circumstantial evidence,
La. R.S. 15:438 provides the factfmder must be satisfied
the overall evidence excludes every reasonable hypothesis
of innocence. State v. Nevers, 621 So.2d 1108, 1116
(La.App. 1st Cir.), writ denied, 617 So.2d 906 (La. 1993).
Ultimately, all evidence, both direct and circumstantial,
must be sufficient under Jackson to satisfy a rational
juror that the defendant is guilty beyond a reasonable
doubt. State v. Shanks, 97-1885, pp. 3-4 (La.App. 1st Cir.
6/29/98), 715So.2dl57, 159.
The Jackson standard is applicable in cases involving both
direct and circumstantial evidence. An appellate court
reviewing the sufficiency of evidence in such cases must
resolve any conflict in the direct evidence by viewing that
evidence in the light most favorable to the prosecution.
When the direct evidence is thus viewed, the facts
established by the direct evidence and inferred from the
circumstances established by that evidence must be
sufficient for a rational trier of fact to conclude beyond
a reasonable doubt that the defendant was guilty of every
essential element of the crime. State v. Booker, 2002-1269,
p. 4 (La.App. 1st Cir. 2/14/03), 839 So.2d 455, 459, writ
denied, 2003-1145 (La. 10/31/03), 857 So.2d 476.
This standard of review, in particular the requirement that
the evidence be viewed in the light most favorable to the
prosecution, obliges the reviewing court to defer to the
actual trier of fact’s rational credibility calls, evidence
weighing, and inference drawing. State v. Mussall, 523
So.2d 1305, 1308-11 (La. 1988). Thus, the reviewing court
is not permitted to decide whether it believes the
witnesses or whether the conviction is contrary to the
weight of the evidence. See State v. Surge, 515 So.2d 494,
505 (La.App. 1st Cir. 1987), writ denied, 532 So.2d 112
(La. 1988). This court will not assess the credibility of
witnesses or reweigh the evidence to overturn a factfmder’s
determination of guilt. See State v. Houston, 98-2658, p. 5
(La.App. 1st Cir. 9/24/99), 754 So.2d 256, 259.
At the trial of this matter, the following testimony was
presented regarding the events immediately preceding the
marijuana transaction:
Officer Kyle Cressionie, a state’s witness, testified he
was employed by the Thibodaux Police Department Narcotics
Division. He further testified that on or about July 2,
2004, narcotics officers Jeff Chamberlain and Steven
Frechou were involved in an undercover operation targeting
street-level narcotics distributors. Cressionie explained
that, in connection with the operation, Chamberlain and
Frechou traveled in an unmarked vehicle to make contact
with suspected dealers. Chamberlain drove the vehicle and
Frechou rode in the front passenger seat. Cressionie
followed in another vehicle acting as safety cover. He was
able to see the defendant arrive at the carwash and observed
Tony approach the truck, but Cressionie could not tell what
Tony was doing at the truck.
Officers Frechou and Chamberlain gave identical accounts of
the events immediately preceding the purchase. Both
officers testified that they made contact with Tony as he
walked down Louisiana Highway 1. The officers offered Tony
a ride and he accepted. Tony entered the vehicle and sat in
the rear passenger seat.
Inside the vehicle, Tony asked the officers what they were
looking for. Chamberlain told Tony they were looking for
“green” (street terminology for marijuana). Tony told the
officers that he could get the green for them, but he would
need to call his brother. Tony used Chamberlain’s cell
telephone to contact an individual he described as “his
brother.” Tony told his brother that he was with two friends
and that they wanted to purchase some marijuana. Tony told
his brother that he worked with Frechou and Chamberlain,
who Tony referred to as “Mike and Greg,” and assured him
that they could be trusted. While he talked on the phone,
Tony quoted the officers a price of $60.00 per ounce.
Chamberlain requested two ounces. The men agreed to meet at
the Hickory Street carwash to complete the transaction.
According to the officers, the individual with whom Tony
spoke on the phone actively participated in the
negotiations. The individual even called back to
Chamberlain’s cell phone once attempting to change the
meeting location. For jurisdictional and safety reasons,
the officers refused. They drove to the Hickory Street
carwash, parked, and waited for Tony’s brother to arrive to
make the delivery. Tony explained that his brother would be
driving a white Ford pickup truck.
Sometime later, an individual, subsequently identified as
the defendant, arrived at the Hickory Street carwash in a
white pickup truck. Tony told the officers, “[Tjhat’s my
brother. . . I’ll be right back.” Tony exited the vehicle
and walked up to the driver’s side window of the track.
According to Frechou and Chamberlain, they observed the
driver of the truck hand Tony a brown plastic bag. Tony
placed the bag in the front pocket of his pants, attempted
to cover it with his shirt and proceeded to walk back
towards the undercover vehicle. Back inside the vehicle,
Tony handed Chamberlain the brown bag from which
Chamberlain removed two smaller Ziploc bags of marijuana.
Upon receiving $120.00 in cash from Chamberlain, Tony
exited the vehicle. Chamberlain contacted Cressionie and
advised that the transaction was complete. Tony, the
defendant, and a passenger in the defendant’s track, Ralph
Clement, were immediately arrested and taken into
custody.[fn1]
Frechou and Chamberlain testified that they personally
observed the defendant hand the bag of marijuana to Tony.
They explained that although they were parked in the second
carwash stall, they had a direct view to the defendant’s
vehicle. They also denied having observed any bulges in
Tony’s pants prior to the defendant’s arrival.
Through the testimony of Tony Smith, Ralph Clement, Ashley
Lirette, and Ester Piediscalzi, the defense presented a
different version of the facts and circumstances
surrounding the transaction. Tony admitted to selling the
marijuana to the officers, but denied that the defendant
had anything to do with the sale. Tony claimed he had the
marijuana tucked away in his pants from the time he
initially entered the undercover vehicle. He claimed he
called the defendant to meet him at the carwash because he
wanted a ride and because he was afraid to complete the
transaction while alone. He said that he was intimidated by
Frechou and Chamberlain and feared they would rob him.
According to Tony, the officers parked in the last carwash
stall, thereby making it impossible for them to have
observed his interaction with his brother at the tmck. Tony
claimed he walked up to his brother’s tmck, reached in and
shook Clement’s hand, and told the two he would be right
back. He was going to tell his friends (Frechou and
Chamberlain) goodbye. Tony testified the defendant was
unaware of the planned dmg transaction. Clement also
testified that the defendant did not give Tony anything out
of the tmck window.
To support his claim that Tony always possessed the
marijuana and had not received it from the defendant, the
defendant presented the testimony of Ashley Lirette and
Ester Piediscalzi. Ashley, the mother of the defendant’s
grandson, testified that she was riding down Louisiana
Highway 1 with her friend, Ester, when she saw Tony walking.
Ashley decided to give Tony a ride. While in the vehicle,
Tony pulled out a bag of marijuana, showed it to Ashley and
Ester and asked if they wanted to buy some. Ashley stated
she told Tony she was not interested in purchasing the
illegal dmgs and she did not want the drugs in her car.
Ashley stopped the vehicle and put Tony out of her vehicle
only to later observe him entering the undercover vehicle.
Ester also testified. Her testimony was consistent with
that of Ashley.
Under La. R.S. 40:966(A)(1), it is unlawful for any person
to knowingly or intentionally distribute marijuana, a
Schedule I controlled dangerous substance. For purposes of
the Uniform Controlled Dangerous Substances Law, La. R.S.
40:961 to 40:995, “distribute” is defined as “to deliver a
controlled dangerous substance whether by physical
delivery, administering, subterfuge, furnishing a
prescription, or by filling, packaging, labeling or
compounding the substance pursuant to the lawful order of a
practitioner.” La. R.S. 40:961(14). “Dispense” is defined
as “to deliver a controlled dangerous substance to the
ultimate user or human research subject by or pursuant to
the lawful order of a practitioner, including the
packaging, labeling, or compounding necessary to prepare
the substance for such delivery.” La. R.S. 40:961(13).
“Deliver” and “delivery” are defined as “the transfer of a
controlled dangerous substance whether or not there exists
an agency relationship.” La. R.S. 40:961(10). The case law
has defined “deliver” as transferring possession or
control. The transfer of possession or control, i.e.,
distribution, is not limited to an actual physical transfer
between the culpable parties, but may be accomplished by
the imposition of a third party. State v. Parker, 536 So.2d
459, 463 (La.App. 1st Cir. 1988), writ denied, 584 So.2d
670 (La. 1991).
A defendant may be guilty as a principal in the crime of
distribution if he aids and abets in the distribution or
directly or indirectly counsels or procures another to
distribute a controlled dangerous substance. See La. R.S.
14:24. Although “[i]t is not necessary to `sell’ contraband
to aid and abet its distribution” a “distributor” must do
more than merely receive the controlled substance as a user.
State v. Celestine, 95-1393, p. 3 (La. 1/26/96), 671 So.2d
896, 897 (per curiam) (and cases cited therein).
It is well settled that the trier of fact is free to accept
or reject, in whole or in part, the testimony of any
witness. Moreover, when there is conflicting testimony
about factual matters, the resolution of which depends upon
a determination of the credibility of the witnesses, the
matter is one of the weight of the evidence, not its
sufficiency. The trier of fact’s determination of the
weight to be given evidence is not subject to appellate
review. State v. Taylor, 97-2261, pp. 5-6 (La.App. 1st Cir.
9/25/98), 721 So.2d 929, 932.
In the instant case, the jury was presented with
conflicting testimony about the facts and circumstances
surrounding the marijuana distribution transaction. On one
hand, the police officers testified that Tony stated he
would have to get the marijuana from the defendant to sell
to them. Thereafter, the officers claimed they personally
observed the defendant hand Tony the exact same package of
marijuana that Tony subsequently sold to them. Tony, on the
other hand, claimed he was the sole participant in the drug
distribution and that the defendant was unaware of the
impending drug transaction. According to Tony, the
defendant thought he was there only to give Tony a ride.
Faced with conflicting accounts of the events, the jury was
forced to make a credibility determination.
The guilty verdict indicates that the jury, after hearing
the testimony and evaluating the credibility of the
witnesses, accepted the testimony of the state’s witnesses
as true and rejected the hypothesis of innocence offered by
the defendant. The jury apparently believed that the
defendant delivered all, or part, of the marijuana Tony sold
to the officers.
Therefore, considering the foregoing, we are convinced that
the evidence presented at the trial of this matter, when
viewed in the light most favorable to the prosecution, was
sufficient to convince a rational trier of fact beyond a
reasonable doubt that the defendant participated in the
distribution of marijuana in this case. These assignments
lack merit.
MISAPPLICATION OF LA. R.S. 40:982 DENIAL OF MOTION FOR NEW
TRIAL
The defendant argues the trial court erred in charging,
convicting, and sentencing him under La. R.S. 40:982, which
does not define a crime. Relying on the recent Supreme
Court decision in State v. Skipper, 04-2137 (La. 6/29/05),
906 So.2d 399, which states that La. R.S. 40:982 is a
sentencing enhancement provision and does not describe a
substantive offense, the defendant argues his conviction and
sentence (for a non-crime) under this statute are invalid
and must be vacated. In a related argument raised in his
pro se brief, the defendant asserts the trial court erred
in denying his motion for a new trial based upon the
misapplication of La. R.S. 40:982 as a substantive offense.
As previously noted, the defendant was charged as a second
or subsequent drug offender. Prior to trial, the defendant
objected to the inclusion of the prior drug convictions in
the bill of information as elements of the crime. The trial
court, following the jurisprudence from this court, ruled
that the prior drug convictions were elements of the La.
R.S. 40:982 charge and had to be alleged in the bill of
information and proven at trial. After the defendant was
convicted, but before he was sentenced, the Supreme Court
overruled the prior jurisprudence with its decision in
Skipper.
In Skipper, the defendant filed a pretrial motion to quash
the bill of information charging him with a second drug
offense under La. R.S. 40:982. The defendant argued that by
placing the fact of his prior drug conviction in the bill
of information, reading that charge to the jury, and
permitting the state to present evidence of that prior
conviction to the jury at the trial, his federal and state
constitutional rights would be violated. The trial court
granted the motion to quash, and the state sought review in
the Supreme Court.[fn2] The Supreme Court held:
La. R.S. 40:982 should be treated as a sentencing
enhancement provision after conviction, like La. R.S.
15:529.1, and not as a substantive element of the
presently-charged offense. Specifically, the allegations
of the prior offense must not be placed in the charging
instrument of the second or subsequent drug-related
offense nor may evidence of the prior offense be presented
to the jury determining the defendant’s guilt or
innocence in the trial of the second or subsequent
drug-related offense for the purpose of sentence
enhancement under La. R.S. 40:982.
State v. Murray, 357 So.2d 1121 (La. 1978), and any
appellate decisions, as discussed herein, which stand for
the proposition that a prior conviction must be placed in
the charging instrument of the second or subsequent
drug-related offense or proved to the jury in order to
enhance the sentence of a drug-related felony under La.
R.S. 40:982, are hereby overruled.
So finding, we hold that the trial court properly granted
the motion to quash the bill of information in this matter
as the state misapplied La. R.S. 40:982 by placing the
allegation of the prior offense in the bill of
information. The ruling of the trial court on the motion
to quash is AFFIRMED.
State v. Skipper, 04-2137 at pp. 25-26, 906 So.2d at 416-17.
Initially we note that the jurisprudence supports
retroactive application of new rules to cases pending on
direct review or not yet final. See State v. Ruiz, 06-30,
p. 8 (La.App. 3d Cir. 5/24/06), 931 So.2d 472, 478 (and
cases cited therein). And since the defendant had been
tried and convicted but was awaiting sentencing when the
supreme court issued its opinion in Skipper, we apply that
holding retroactively in our review of this case.
In State v. Ruiz, 06-30 at p. 1, 931 So.2d at 474, the
defendant had been charged in the bill of information with
possession of cocaine, second offense, in violation of La.
R.S. 40:967 and La. R.S. 40:982, and distribution of
cocaine, second offense, in violation of La. R.S. 40:967
and La. R.S. 40:982. The Third Circuit found the second
offense of each conviction severable from the first,
emphasizing that in Skipper, the supreme court specifically
stated, “Unlike criminal statutes which contain their own
enhancement provisions for multiple violations of the same
criminal act, La. R.S. 40:982 is a completely separate
statute which does not in and of itself define a crime.”
State v. Ruiz, 06-30 at p. 9, 931 So.2d at 480 (quoting
Skipper, 04-2137 at p. 24, 906 So.2d at 716). Relying on
this language, the Ruiz court opted to vacate only the La.
R.S. 40:982 (second-offense) portions of the defendant’s
convictions. The court explained:
Considering that the statutes are separate from one
another, that La. R.S. 40:982 has no substantive
provisions and no bearing upon the most recent conduct at
issue, and that a substantive provision, La. R.S. 40:967,
was also charged in relation to both counts, we find that
while the convictions for a second offense under La. R.S.
40:982 should be reversed as convictions for non-crimes,
the substantive portion of the offenses under La. R.S.
40:967 is severable from the non-crimes of second-offense
possession and second-offense distribution.
State v. Ruiz, 06-30 at pp. 9-10, 931 So.2d at 479.
After our thorough review of the jurisprudence on this
issue, in this case we find, as did the Ruiz court, that
the La. R.S. 40:982 (second or subsequent offense)
conviction is severable from the portion of the conviction
that relied upon La. R.S. 40:966 (distribution of
marijuana) and the most recent conduct. As the Supreme
Court noted in its opinion, the two statutory provisions
— one describing the substantive offense and the
other a sentencing enhancement ~ are completely separate
and have no bearing upon one another. La. R.S. 40:982 has
no independent provisions that bear upon the most recent
incident of distribution that initiated the current
proceedings, and upon which the current conviction partly
rests. The bill of information cites both statutes. The
unconstitutionality of one portion of a statute does not
necessarily render the entire statute unenforceable. If the
remaining portion of the statute is severable from the
offending portion, the jurisprudence supports striking only
the offending portion and leaving the remainder intact. See
State v. Ruiz, 06-30 at p. 11, 931 So.2d at 480. Thus when,
as here, a section of law is stricken and the remaining
sections are complete in themselves, and capable of being
executed, wholly independent of the section which was
rejected, and where there is no conflict in the penalties
imposed and no confusion, the conviction under the valid
section will stand. Id.
Consequently, since only La. R.S. 40:982 has been deemed a
non-crime, and since La. R.S. 40:966 contains no
proscriptions against the most recent conduct charged,
i.e., distribution of marijuana, we choose to vacate only
the second or subsequent drug conviction portion of the
defendant’s conviction and sentence under La. R.S. 40:982.
Accordingly, we enter a modified judgment of conviction for
the most recent conduct of distribution of marijuana in
violation of La. R.S. 40:966.[fn3] However, in order to
affirm the defendant’s conviction as a La. R.S. 40:966
violation, we must consider the effect of the jury’s
exposure to evidence of the defendant’s prior drug
convictions on the defendant’s right to a fair trial.
PREJUDICIAL INTRODUCTION OF PRIOR CONVICTIONS
The defendant argues that the inclusion of his prior drug
convictions in the bill of information was in derogation of
the supreme court’s ruling in Skipper. He asserts the
introduction of evidence of the prior convictions before
the jury was highly prejudicial and deprived him of his
right to a fair trial. The defendant further asserts “there
is no way that the error in introducing the four previous
convictions can be deemed harmless.”
The defendant asserts, and we agree, that under Skipper it
was error for the state to charge the prior drug
convictions in the bill of information and to introduce
evidence of the convictions before the jury at the
defendant’s trial. However, the determination that other
crimes evidence was improperly admitted at trial does not
end our inquiry. The erroneous admission of other crimes
evidence is a trial error subject to harmless error
analysis. Accordingly, we must now determine whether the
erroneous admission of the “other crimes” evidence at the
defendant’s trial was harmless or the basis for reversal.
State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94,
100. The test for harmless error is whether the guilty
verdict “was surely unattributable to the error.” State v.
Crotwell, 2000-2551, p. 13 (La.App. 1st Cir. 11/9/01), 818
So.2d 34, 44. The pertinent inquiry to determine if a trial
error is harmless is not whether, in a trial that occurred
without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered
in this trial was surely unattributable to the error. State
v. Maise, 2000-1158, pp. 8-9 (La. 1/15/02), 805 So.2d 1141,
1148.
The jury in this case heard the testimony of officers
Frechou and Chamberlain, both of whom personally observed
Tony Smith contact the defendant and tell him that they
were interested in purchasing two ounces of marijuana. The
officers also observed the defendant arrive at the
designated location and hand something to Tony who
immediately returned to the undercover vehicle and sold two
ounces of marijuana to the officers for $120.00.
Furthermore, the record reflects that the trial court gave
a limiting instruction to the jury that the prior
convictions cannot be considered in the determination of the
defendant’s guilt or innocence on the primary offense
charged. The trial judge specifically explained:
[i]f you find that the defendant was previously convicted
as alleged, then he is subject to an enhanced penalty if
you find him guilty of the conduct charged in the bill of
information. The prior convictions are alleged solely to
enhance the penalty if you convict the defendant of the
offense charged. You are not to consider or in any way
take the prior convictions into-account in determining the
defendant’s guilt or innocence of the conduct charged in
this bill of information.
Considering the foregoing, we are convinced that the guilty
verdict rendered in this trial was surely unattributable to
the fact that the jury was exposed to evidence of the
defendant’s criminal history. These assignments of error
lack merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
The defendant asserts he received ineffective assistance of
counsel at trial. The defendant notes three instances in
which he claims that failure of his trial counsel to
properly represent him affected the outcome of his case. He
claims his counsel’s performance fell below the standard
when he failed to: (1) object when the trial court allowed
written evidence of his prior convictions to be taken into
the jury room during deliberations; (2) offer expert
testimony as to the effects of drinking alcohol and whether
impairment existed; and (3) object to the prejudicial jury
instructions.
It is well settled that a claim of ineffective assistance
of counsel is more properly raised by an application for
post-conviction relief in the trial court where a full
evidentiary hearing may be conducted. But if the record
discloses the evidence needed to decide the issue of
ineffective assistance of counsel and that issue is raised
by an assignment of error on appeal, the issue may be
addressed in the interest of judicial economy. State v.
Williams, 632 So.2d 351, 361 (La.App. 1st Cir. 1993), writ
denied, 94-1009 (La. 9/2/94), 643 So.2d 139.
But the particular allegations of ineffective assistance of
counsel alleged by the defendant herein cannot be
sufficiently investigated from the inspection of the record
alone. Each of these allegations (failure to object to the
jury’s review of written evidence during deliberations,
failure to present evidence of the effects of alcohol or
evidence of impairment, and the failure to object to jury
instructions) may involve matters of trial preparation or
strategy. It is well settled that decisions relating to
investigation, preparation, and strategy require an
evidentiary hearing and cannot possibly be reviewed on
appeal. See State v. Martin, 607 So.2d 775, 788 (La.App.
1st Cir. 1992). Only in an evidentiaiy hearing in the
district court, where the defendant could present evidence
beyond that contained in the instant record, could these
allegations be sufficiently investigated.[fn4] Accordingly,
these allegations are not subject to appellate review. See
State v. Albert, 96-1991, p. 11 (La.App. 1st Cir. 6/20/97),
697 So.2d 1355, 1364.
DENIAL OF NEW TRIAL FOR CONSUMPTION OF ALCOHOL BY JURORS
DURING RECESS
The defendant contends the trial court erred in failing to
grant his motion for a new trial based upon the fact that
several jurors consumed alcoholic beverages during the
trial proceedings. The defendant further asserts the trial
court erred in limiting the scope of the evidentiary
hearing on the issue and in failing to take any adjudicative
actions against the jurors in question based upon their
misconduct.
Following the conclusion of the defendant’s trial, juror
Pamela Pitre contacted the defense attorney and advised
that several of the jurors in the defendant’s case were
observed consuming alcoholic beverages with their lunch on
the second and third days of the trial. The defendant filed
an amended motion for a new trial based upon this
information. The defendant alleged the jurors’ actions of
consuming alcoholic beverages during jury service is
defined as juror misconduct and prohibited by La. R.S.
14:130.[fn5] He contends that as a result, members of the
jury were impaired in their ability to properly perform
their duties, thereby denying the defendant of his
constitutional right to a trial by an alert and serious
tribunal. The defendant further asserts the trial judge
erred in denying defense counsel the right to subpoena the
jurors named as participating in the alleged misconduct for
the evidentiary hearing.
Upon reviewing the new trial motion and hearing argument of
counsel, the trial court ordered an evidentiary hearing on
the issue of alcohol consumption by the jurors. The trial
court specifically noted that although the defendant’s
motion for a new trial contained conclusory allegations of
impairment, it was unclear from the motion whether the
defendant, his counsel, or the juror who reported the
conduct drew this conclusion. The trial court ordered juror
Pitre to testify. The trial judge specifically explained
the main purpose of the hearing would be to establish if
any evidence of impairment or intoxication existed,
explaining:
[T]he issue, the proof that the Court will be primarily
concerned with is whether or not that witness will in fact
testify under oath that there was consumption of alcohol
by jurors during the evidentiary phase of the trial. But
even more importantly, whether or not that juror can
testify that there were physical manifestations that a lay
person could observe which would prove that the jurors,
one or more jurors were actually impaired. Because only if
a juror is impaired is there even the potential of harm to
the defendant.
At the hearing on the motion for a new trial, Pitre, the
sole witness, testified that juror Cynthia Ramsey was
observed drinking a Guinness beer and juror John Arvello
drank three Miller Lite beers during the April 27, 2005
lunch break at Pepper’s Pizza. Pitre further testified that
the following day, Arvello drank two Miller Lite beers and
Donald Rouse consumed a Bloody Mary cocktail during the
lunch break at Spahr’s Restaurant. Pitre testified she did
not report these observations during the trial because,
although the consumption of alcohol during jury service did
not “sit right with [her]”, she did not know that the
behavior constituted jury misconduct.
Despite having been advised by the trial court that such
evidence would be critical at the hearing, counsel for the
defendant did not present any evidence of intoxication or
impairment. Instead, defense counsel argued that the
evidence of the consumption of alcohol alone was sufficient
to entitle the defendant to a new trial. In response, the
state noted the lack of evidence of the effects of alcohol
on the jurors in question or on the deliberations.
In denying the motion for a new trial on this ground, the
trial court reasoned:
The evidence of Ms. Pitre proves that more than one juror
during the evidentiary portion of the trial consumed
alcohol. This is in violation of the duties of a juror.
However, there was no evidence that any juror was under
the influence of alcohol or impaired by alcohol during
the presentation of evidence or during jury
deliberations.
Ms. Pitre testified that she observed consumption of
alcohol. She did not testify that she observed any type of
physical or mental impairment of any juror at any time
during the trial of this matter, whether it was during
the presentation of evidence or during jury
deliberations.
Furthermore, this Court has been unable to identify any
case holding that mere consumption of alcohol, with no
proof of impairment, should result in declaring a mistrial
or should support the granting of the [mjotion for [n]ew
trial.
And finally, the Court will state for the record that at
no time during this trial, either during the presentation
of evidence, or at times when the jury came before the
Court after the presentation of evidence, was there any
indication of any impairment of any juror.
Following a review of the record in this case, we find no
error in the trial count’s denial of the motion for a new
trial on this ground. As the trial court correctly noted,
the defendant failed to present any evidence of impairment
or intoxication. Proof that a juror has consumed alcohol
does not in and of itself entitle the defendant to a new
trial. It is incumbent upon the defendant to establish
that the mind of the juror was affected by alcohol or that
he suffered from some degree of intoxication. No such
evidence was presented herein.
Drinking alone, without a showing of prejudice, will not
suffice to avoid a verdict. See 75 Am. Jur.2d §
1616; Annot. 7 A.L.R.3d 1040, 1050 (1966). The trial court
must examine the circumstances to determine if prejudice
resulted from this jury misconduct. See United States v.
Taliaferro, 558 F.2d 724, 726 (U.S. 4th Cir. 1977) (per
curiam), cert, denied, 434 U.S. 1016, 98 S.Ct. 734, 54
L.Ed.2d 761 (1978). Because the controlling test is whether
the defendant was denied a fair trial, if a juror’s
judgment is affected by alcohol during consideration of the
case, the verdict would not stand. No such showing was made
in the instant case. The defendant’s argument in support of
his motion for a new trial rested solely on the consumption
of alcohol by the jurors rather than any actual prejudice
resulting therefrom.[fn6]
Insofar as the defendant claims the trial court condoned
the illegal conduct, we note the following remark by the
court:
Again, I want to make it clear in this ruling that this
Court finds that the fact that there was consumption of
alcohol by jurors is unacceptable. To be quite frank, this
is my twelfth year of doing this. I’ve never, ever heard
of jurors consuming alcohol. And I guess it’s one of the
many other things that will have to be added to the
admonitions given to jurors before there’s any break.
But again, the only evidence before the Court today is
that there was consumption of alcohol. No evidence of any
type of impairment, and this Court did not witness any
impairment. And because I do not believe that there’s this
threshold evidence of impairment, the Court will again
maintain its earlier ruling that it would be improper to
call those jurors and to inquire directly of them of their
actions, both during the presentation of evidence and also
during jury deliberations.
Therefore, contrary to the defendant’s assertions, the
record before us reflects that the trial court gave the
matter careful consideration. The trial court unequivocally
condemned the consumption of alcoholic beverages during
jury service, but found that the defendant was not denied a
fair trial. In denying the motion for a new trial, the
trial court noted that there was absolutely no evidence
that any juror was intoxicated.
Finally, the defendant argues the trial court erred in
denying his counsel’s request to call the named jurors to
testify during the hearing on the issue of alcohol
consumption.
La. Code Evidence article 606(B) provides, in pertinent
part:
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury’s
deliberations or to the effect of anything upon his or any
other juror’s mind or emotions as influencing him to
assent to or dissent from the verdict or indictment or
concerning his mental processes in connection therewith,
except that a juror may testify on the question whether
any outside influence was improperly brought to bear upon
any juror, and, in criminal cases only, whether
extraneous prejudicial information was improperly brought
to the jury’s attention.
The prohibition in this article is intended to preserve the
finality of jury verdicts and the confidentiality of
discussions among jurors. See State v. Duncan, 563 So.2d
1269, 1272 (La.App. 1st Cir. 1990). However, the
jurisprudence has established the prohibition against juror
testimony is not absolute and must yield to a substantial
showing that the defendant was deprived of his
constitutional rights. Well-pleaded allegations of
prejudicial juror misconduct violating a defendant’s
constitutional rights will require an evidentiary hearing at
which jurors shall testify. State v. Duncan, 563 So.2d at
1272.
In denying the defendant’s request to call the jurors in
question, the trial court specifically noted there had been
no threshold showing of impairment. The trial court found
that absent such evidence of prejudice, there could be no
substantial showing of deprivation of constitutional rights
to require or allow members of the jury to testify. Under
these circumstances, we find that the trial court correctly
applied the jury shield law and limited the testimony at
the new trial hearing.
For all of the foregoing reasons, we find no error in the
trial court’s denial of the defendant’s motion for a new
trial based upon jury misconduct. These assignments of
error lack merit.
NON-UNANIMOUS JURY VERDICT
The defendant contends the trial judge erred in accepting
the non-unanimous jury verdict as legal. While he concedes
that the verdict is in conformity with the present state of
the law, the defendant maintains that, in light of recent
jurisprudence, La. Code Crim. P. art. 782 and La. Const,
art. I, § 17 (providing for jury verdicts of 10 to 2
in cases in which punishment is necessarily confinement at
hard labor) violate the Sixth and Fourteenth Amendments of
the United States Constitution. Thus, the defendant argues
the 10-2 jury verdict is unconstitutional.
The punishment for distribution of marijuana is confinement
at hard labor. See La. R.S. 40:966(B)(3). Louisiana
Constitution article I, § 17(A) and La. Code Crim.
P. art. 782(A) provide that in cases where punishment is
necessarily at hard labor, the case shall be tried by a
jury composed of twelve jurors, ten of whom must concur to
render a verdict. Under both state and federal
jurisprudence, a criminal conviction by a less than
unanimous jury does not violate a defendant’s right to
trial by jury specified by the Sixth Amendment and made
applicable to the states by the Fourteenth Amendment. See
Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d
184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.
1982); State v. Shanks, 97-1885, pp. 15-16 (La.App. 1st
Cir. 6/29/98), 715 So.2d 157, 164-65.
The defendant’s reliance on Blakely v. Washington, 542 U.S.
296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring v.
Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556
(2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000); and Jones v. United States,
526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) is
misplaced. These Supreme Court decisions do not address the
issue of the constitutionality of a non-unanimous jury
verdict; rather, they address the issue of whether the
assessment of facts in determining an increased penalty of
a crime beyond the prescribed statutory maximum is within
the province of the jury or the trial judge, sitting alone.
Nothing in these decisions suggests that the jury’s verdict
must be unanimous for a defendant’s conviction to be
constitutional. Accordingly, La. Const, art. I, §
17(A) and La. Code Crim. P. art. 782(A) are not
unconstitutional and, hence, not violative of the
defendant’s Sixth Amendment right to trial by jury.
DENIAL OF HEARING ON SLEEPING BAILIFF
The defendant urges that the trial court erred in denying
defense counsel the opportunity to address the factual
issue raised concerning a trial court bailiff who allegedly
fell asleep and was snoring so loudly that the jurors were
prevented from hearing the evidence during the trial. The
defendant argues the trial court should have held an
evidentiary hearing to address the merits of the claim.
As previously noted, the jury shield law prohibits
testimony by jurors unless there are well-pleaded
allegations of prejudicial juror misconduct violating the
defendant’s constitutional rights. The trial court found
insufficient evidence to support the defendant’s claim. In
denying the defendant’s motion for a new trial on this
ground, the trial judge noted that it did not observe any
sleeping by the bailiff in question or any noise loud
enough to affect the jurors’ ability to hear and see the
evidence being presented. He further noted that there was
never a complaint that the jury was experiencing any
difficulty. Thus, the trial court concluded the defendant’s
claim failed to allege juror misconduct in the nature of
constitutional violations with sufficient particularity to
require or allow members of the jury to testify.
The trial court properly weighed the constitutional rights
of the defendant and the protection that it is required to
afford juries and individual jurors. The trial court found
that the allegations of a sleeping bailiff did not rise to
the level which would permit inquiry into the jury process.
The record supports this conclusion. The trial court did
not err in relying on its observations and refusing to
order an evidentiary hearing on this issue. This assignment
of error lacks merit.
UNAUTHORIZED LEGAL ADVICE BY TRIAL COURT
The defendant asserts the trial court erred in issuing
unauthorized legal advice to the prosecutor during the
trial. Specifically, the defendant points to the portion of
the trial wherein the prosecutor questioned Officer
Cressionie regarding the circumstances surrounding Officer
Frechou’s alleged suspension from his employment.
In this case, this court is not at liberty to consider the
correctness of the trial court’s actions in the
aforementioned instance in light of the fact that the
defendant failed to raise a contemporaneous objection. “An
irregularity or error cannot be availed of after verdict
unless it was objected to at the time of occurrence.” La.
Code Crim. P. art. 841(A). The purpose of the
contemporaneous objection rule is to allow the trial judge
the opportunity to rule on the objection and thereby
prevent or cure an error. State v. Hilton, 99-1239, p. 12
(La.App. 1st Cir. 3/31/00), 764 So.2d 1027, 1035, writ
denied, 00-0958 (La. 3/9/01), 786 So.2d 113. The rule also
prevents a defendant from “sitting on” an error and
gambling unsuccessfully on the verdict, then later
resorting to an appeal on an error that might have been
corrected at trial. State v. Duplissey, 550 So.2d 590, 593
(La. 1989). Since the defendant failed to lodge a
contemporaneous objection to the trial court’s statements,
he is precluded from raising this issue for the first time
on appeal. This assignment of error lacks merit.
DECREE
For all these reasons, we reverse the defendant’s original
conviction, amend the judgment of conviction to
distribution of marijuana and, as amended, affirm the
conviction. The sentence imposed by the trial court is
vacated and the matter remanded for sentencing on the
amended judgment of conviction.
ORIGINAL CONVICTION AMENDED TO DISTRIBUTION OF MARIJUANA
AND, AS AMENDED, THE CONVICTION IS AFFIRMED. SENTENCE
VACATED AND REMANDED FOR SENTENCING ON AMENDED JUDGMENT OF
CONVICTION.
[fn1] Clement was subsequently released without charges
based on the officers’ belief that they lacked the
requisite proof to establish that he was involved with the
transaction or aware it was to take place.
[fn2] Because the trial court’s ruling in Skipper included a
declaration that La. R.S. 40:982 was unconstitutional, the
state appealed directly to the supreme court.
[fn3] Since the evidence supports a conviction for a lesser
and included offense, this court is authorized to render a
judgment of conviction on the lesser included responsive
offense. See La. Code Crim. P. art. 821(E) & State v.
Ortiz, 96-1609, p. 20 (La. 10/21/97), 701 So.2d 922, 934,
cert, denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722
(1998).
[fn4] The defendant would have to satisfy the requirements
of La. Code Crim. P. art. 924 et seq. in order to receive
such a hearing.
[fn5] La. R.S. 14:130A(3) provides that jury misconduct is
committed when “[a]ny petit juror shall either use or
consume any beverage of low or high alcoholic content
during the time he is in actual service as juror.”
[fn6] Regarding the defendant’s contention that the trial
court erred in failing to take adjudicative action against
the jurors, it is well settled that the decision as to
whether any adjudicative action will be taken against
individuals who commit criminal offenses lies with the
district attorney. See La. Code Crim. P. art. 61. Thus, the
trial court lacked the authority to institute criminal
proceedings against the jurors under La. R.S. 14:130 for
jury misconduct.
WELCH, J., DISSENTING.
I respectfully dissent from the majority opinion because I
believe there were two fatal flaws in the proceedings below
which mandate that the defendant’s conviction be reversed
and his sentence vacated.
First, the defendant’s conviction should be reversed based
on the constitutional error pointed out by our supreme
court in State v. Skipper, 2004-2137 (La. 6/29/05), 906
So.2d 399, which the majority expressly notes is applicable
to this case. In Skipper, the Supreme Court held
that La. R.S. 40:982 should be treated as a sentencing
enhancement provision after conviction, like La. R.S.
15:529.1, and not as a substantive element of the
presently-charged offense. Specifically, the allegations
of the prior offense must not be placed in the charging
instrument of the second or subsequent drug-related
offense nor may evidence of the prior offense be presented
to the jury determining the defendant’s guilt or innocence
in the trial of the second or subsequent drug-related
offense for the purpose of sentence enhancement under La.
R.S. 40:9.
(Emphasis added).
Skipper, 906 So.2d at 416-17.
Therefore, it was legal error for the State to list
defendant’s four prior convictions in the bill of
information,[fn1] to read them to the jury, to refer to the
convictions in its opening statement, to present evidence
of the prior convictions via the defendant’s probation
officer, to publish documentary evidence of the prior
convictions to the jury, to refer to the four prior
convictions in its closing argument, and to refer the four
prior convictions in the jury instructions.
I believe this case falls squarely into the question left
unanswered by our supreme court in footnote 23 of Skipper,
i.e., the applicability of a harmless error analysis under
State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94.
And, since the trial court gave a limiting instruction, the
possible ameliorative effects of that limiting instruction
post State v. Green, 493 So.2d 588 (La. 1986).
The majority determines that the harmless error analysis is
applicable to the Skipper error; however, I believe the
approach set forth by the third circuit court of appeal in
State v. Robertson, 2006-167 (La.App. 3rd Cir. 5/31/06),
931 So.2d 523; State v. Senegal, 2005-1633 (La.App. 3rd
Cir. 5/24/06), 931 So.2d 450; and State v. Peltier, 06-0284
(La.App. 3rd Cir. 9/27/06), (unpublished opinion), which
hold that the harmless error analysis is inapplicable, is
the correct approach. As stated by the third circuit:
We also note that in our view the inclusion of a prior
conviction can never be harmless error. In State v.
Prieur, 277 So.2d 126, 128 (La. 1973), the Louisiana
Supreme Court recognized the prejudicial effect of the
introduction of prior convictions, stating:
The admissibility of other acts of misconduct involves
substantial risk of grave prejudice to a defendant. As to
the prejudicial effect of evidence of other crimes,
Wigmore says: The natural and inevitable tendency of
the tribunal — whether judge or jury — is to give
excessive weight to the vicious record of crime thus
exhibited, and either to allow it to bear too strongly on
the present charge, or to take the proof of it as
justifying a condemnation irrespective of guilt of the
present charge. 1 Wigmore, Evidence § 194 (3rd
Ed.).
This court in State v. Williams, 96-476 (La.App. 3 Cir.
4/30/97), 693 So.2d 870, 873, writ denied, 97-1365 (La.
10/31/97), 703 So.2d 20, also stated its concerns with
listing prior convictions in a bill of information:
In our view, a prior conviction that is not an element of
the substantive offense should not be alleged in a bill of
information. It offends the notion of a fair trial. It is
naive to think that its prejudicial impact is somehow
vitiated by a limiting jury instruction . . . This
statute, La.R.S. 40:92 . . . is a sentencing mechanism.
Sentencing is not a jury function; it is a judge function.
The jury has no business hearing evidence of the
conviction of another crime for the purpose of enhancing
a defendant’s sentence because it has nothing to do with
what sentence will be imposed.
Senegal, 931 So.2d at 454 n. 4.
The majority relies upon State v. Ruiz, 2006-30 (La.App.
3rd Cir. 5/24/06), 931 So.2d 472, wherein another panel of
the third circuit struck the non-crime portion of the bill
of information and applied a harmless error analysis to the
introduction of the defendant’s prior drug
convictions.[fn2] The Ruiz court took the position that the
non-crime portion of the bill of information was severable.
However, this result is contrary to the result reached by
other panels of the third circuit in Robertson, Senegal,
and Peltier, which concluded that the non-crime listed in
the bill of information was not severable. The rationale
for non-severance was based upon the supreme court’s action
in Skipper. In Skipper the Supreme Court could have severed
the non-crime from the bill of information, and refer the
remaining count back for trial. See State v. Coody, 448
So.2d 100 (La. 1984). However, since the supreme court
chose to quash the bill of information, which contained
both charges, it apparently concluded that both charges
should be quashed.
Moreover, I believe that even if severance is appropriate
and a harmless error analysis is applicable, the error in
this case was grossly prejudicial.
Louisiana Revised Statutes 40:982, as interpreted prior to
Skipper, required the State to prove a prior drug
conviction. In this case, the State proved four prior drug
convictions. The defense counsel filed a motion to quash,
arguing that the defendant was being charged with a
non-crime and that the State was “piling on” and
“overloading the gun.” I agree. The defendant never
disputed his prior convictions, and the State’s action in
listing the four prior convictions in the bill of
information and in proving the four convictions was done
specifically to call attention to those prior convictions
and to prejudice the jury.
The test for harmless error is whether the guilty verdict
“was surely unattributable to the error.” State v.
Crotwell, 2000-2551 (La.App. 1st Cir. 11/8/01), 818 So.2d
34, 44 (quoting State v. Ellis, 99-0425 (La.App. 1st Cir.
12/28/99), 756 So.2d 418, 421). The pertinent inquiry to
determine if an error at trial is harmless is not whether
in a trial that occurred without error, a guilty verdict
would surely have been rendered, but whether the guilty
verdict actually rendered in this trial was surely
unattributable to the error. State v. Maise, 2000-1158 (La.
1/15/02), 805 So.2d 1141, 1148.
Unlike the scenarios in State v. Wells, 2001-1276 (La.App.
5th Cir. 3/26/02), 815 So.2d 1063 and Ruiz, wherein the
erroneous exposure of the jury to the defendants’ criminal
history was found to be harmless, there was conflicting
evidence in this case. In Wells, fifty rocks of crack
cocaine were found in the defendant’s pants after he made
motions in an attempt to hide them. In Ruiz, the defendant
sold cocaine directly to an undercover police officer.
Considering the “strong” evidence against the defendants in
those cases, the courts found the erroneous exposure of the
jury to the fact of the defendants’ criminal history to be
harmless error. However, in the instant case, I cannot say
that the evidence of the defendant’s guilt was
overwhelming. There was conflicting evidence of whether the
defendant actually participated in the drug transaction.
There was no hand-to-hand transaction between the defendant
and the undercover officers, nor were any drugs found on
the defendant’s person or in his vehicle. The State’s case
depended solely on credibility determinations. The jury in
this case was required to weigh the testimonial evidence to
determine the extent of the defendant’s involvement in the
drug transaction. Considering the conflicting nature of the
evidence presented, I simply cannot conclude the jury’s
verdict was surely unattributable to the erroneously
admitted evidence of prior drug convictions.
However, unlike the Robertson, Senegal, Peltier, and Ruiz
cases the trial court did give the following limiting
instruction:
If you find that the defendant was previously convicted
as alleged, then he is subject to an enhanced penalty if
you find him guilty of the conduct charged in the bill of
information. The prior convictions are alleged solely to
enhance the penalty if you convict the defendant of the
offense charged. You are not to consider or in any way
take the prior convictions into account in determining the
defendant’s guilt or innocence of the conduct charged in
this bill of information.
Nevertheless, this instruction was not given until the end
of the trial, after the jury had already heard the State
refer to the four convictions in its opening statement;
heard the first witness, the defendant’s probation
officer, testify to the four prior convictions; reviewed
documents showing the four convictions; and heard the State
refer to the prior convictions in its closing argument.
Thereafter, the court read the conviction in the jury
instructions and followed it with the limiting instruction.
It defies reason and common sense to conclude that this
limiting instruction could ameliorate the prejudicial
effect that the State intended to create by the
introduction of the four prior convictions. To ask of the
jury the Herculean task of ignoring these convictions,
while weighing the conflicting evidence presented at trial,
was asking the jury to do the impossible. Accordingly, I
believe that the defendant’s conviction should be reversed,
his sentence should be vacated, and this matter referred
back to the trial court for a new trial. See State v.
Campbell, 95-1409 (La. 3/22/06), 670 So.2d 1212.
The other error that requires a reversal of the defendant’s
conviction is based on juror misconduct; specifically, the
consumption of alcohol by the jurors during their lunch
break. Louisiana Revised Statues 14:130(3) provides that
jury misconduct is committed when any juror “use[s] or
consume[s] any beverage of low or high alcoholic content
during the time he is in actual service as [a] juror.”
At the evidentiary hearing on defendant’s motion for new
trial, juror Pitre testified that during the lunch break on
April 27, 2005, juror Ramsey drank a Guinness beer and
juror Arvello drank three Miller Lite beers. She also
testified that on the lunch break the following day, juror
Arvello drank two Miller Lite beers and juror Rouse drank a
Bloody Mary.
Despite the statutory prohibition against jurors using or
consuming alcoholic beverages during their service, the
trial court denied defendant’s motion for new trial on the
basis that defendant failed to prove physical or mental
impairment of any juror at anytime during the presentation
of evidence or during their deliberations. While the
majority found no error in the trial court’s decision, I
believe the trial court erred not only in finding that
there was no proof of impairment, but also in determining
that such proof was necessary to establish that a new trial
was warranted. As noted by the majority, “the controlling
test is whether the defendant was denied a fair trial”
— it is not whether the defendant proved that the
juror displayed an outward appearance of being physically
or mentally impaired. If a juror is under the influence of
alcohol during the consideration of the case, then the
defendant has been denied a fair trial because the juror’s
judgment has been affected.
It is generally accepted that the body metabolizes
approximately one ounce of alcohol (or one twelve-ounce
beer or one four-ounce glass of wine) per hour. While the
trial court may have been correct regarding the alcohol
consumption of jurors Ramsey and Rouse, I believe there is
no question that juror Arvello was under the influence of
alcohol on April 27, 2005.
The minutes of the trial court reflect that on April 27,
2005, the jury was excused for lunch at 12:00 p.m. and the
trial resumed at 1:45 p.m. During this one hour and
forty-five minute time period, juror Arvello had to leave
the courthouse, travel to the lunch destination, eat his
lunch, drink the three beers, and then return back to the
courthouse. Accordingly, there is no doubt that juror
Arvello was under the influence of alcohol to a significant
degree when the trial resumed at 1:45 p.m. On April 28,
2005, the minutes reflect that the jury was excused for
lunch at 11:50 a.m. and the trial resumed at 1:30 p.m. On
this day, juror Arvello consumed two beers at lunch. Again,
depending upon time and distance to the restaurant, juror
Arvello may well have been under the influence of alcohol.
Considering the juror misconduct in this case, the
defendant was denied a fair trial and I do not believe that
the jury’s verdict can stand.
Thus, based upon the two glaring legal errors in this case,
I would reverse the defendant’s conviction, vacated his
sentence, and remand the matter for a new trial.
[fn1] The previous convictions listed in the bill of
information were: distribution of methamphetamine, January
31, 1979; possession of marijuana (second offense), May 26,
1988; Opossession with intent to distribute cocaine,
November 10, 1993; and, possession with intent to
distribute Diazepam, November 10, 1993.
[fn2] In a pre-Skipper case, the Firth Circuit in State v.
Wells, 2001-1276 (La.App. 5th Cir. 3/26/02), 815 So.2d
1063, also applied a harmless error analysis to the
introduction of prior drug convictions.