State Of Louisiana VS Jerome Miller
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 KA 2356 STATE OF LOUISIANA VERSUS JEROME MILLER D ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT 424947 DIY D PARISH OF LAFOURCHE NUMBER 390505 STATE OF LOUISIANA fJo HONORABLE ASHL Y BRUCE SIMPSON JUDGE f Rene C Gautreaux Counsel for Appellee Assistant District Attorney State of Louisiana Thibodaux Louisiana C Gary Wainwright New Orleans Louisiana BEFORE Disposition AFFmMED CONVICTION Counsel for Defendant Appellant Jerome Miller PARRO KUHN AND DOWNING JJ HABITUAL OFFENDER ADJUDICATION AND SENTENCE Kuhn J The defendant Jerome Miller distribution of cocaine a a schedule II controlled violation of La R S 40 967 trial the defendant by jUlY 1 was offender bill of information found guilty The defendant to R S 1A 529 years motion to 1 c to i The trial The State filed a one After a habitual denied the allegations in the court imprisonment at hard reconsider sentence labor denied the defendant s presented during the trial reasons we advised fourth offender under La delays and now was sentenced insufficient the trial appeals arguing other crimes evidence under the was being to The trial court denied the defendant The defendant evidence forthcoming status The defendant waived admitting and originally his habitual offender ened in the charged plea of not guilty the defendant withdrew his former denial and after rights stipulated 15 thirty a substance count quash the habitual offender bill of information and motion for new trial Subsequently of his as bill of information with a dangerous The defendant entered habitual offender bill of information motion charged by was res to s court gestae rule and that the support his conviction affirm the conviction habitual offender For adjudication sentence FACTS On or about June 27 2002 Lafourche Parish I The defendant this was portion of the Drug Task also charged Force as a Penny Pitre contacted a source Sergeant John Champagne of the multiple offender under bill of information and filed a R S 15 529 1 2 of information for the La R S 40 982 The State struck habitual offender bill of information under La 2 Lafourche Parish Sheriff s Office advised she could undercover acted Agent the undercover as also called was operation targeting Lafourche Parish subjects would be Shelley G Trosclair and Jerome Several officers conducted at Pitre Agent Hines purchaser equipped was marijuana was re out then handed asked at nearby location near Pitre a arriving with a from his crotch The male male area to and placed 3 According was credibility before was it on a table the male A audio Shortly looking a around bag of bag of crack cocaine to subject 3 Agent Hines who The male subject purchase marijuana and Agent Hines complete Agent team to Hines used make the a scar over arrest his eye a code word Agent Hines also wearing a welder s cap a person who is considered a source of information must classified as a confidential infonnant that being to the evidence fonn The evidence to to black male with Sergeant Champagne explained establish his an residence s subject pulled subject handed the crack cocaine alert the surveillance a The male subject 900 00 in serialized funds described the seller as 2 a After the transaction Winnebago with pre determined amount of narcotics Agent Hines if he also wanted declined residence in Hines arrived at the residence Pitre informed him that the two entered with enclosed s an Several officers of the Lafourche Parish Sheriffs after his arrival Trosclair arrived entered the residence and after exited and Pitre Richard Hines of the St Charles Parish Sheriffs Office Office monitored the audio system Agent Sergeant Champagne Trosclair and the defendant transmitter and serialized funds After to crack cocaine from purchase Miller the defendant who According approximately eight grams of crack cocaine were collected submitted to the Louisiana State Police Crime Laboratory for testing and detennined to contain cocaine 3 He also related Pitre s description of the perpetrators vehicle a Mazda to beige the surveillance team The officers located and two from Pitre conducted house s After serialized funds on He located be a substance approximately nine the vehicle On 1 The appeal participated suspected to took place at on Pellegrin located the top of Trosclair on marijuana approximately 10 00 p on the driver assignments erred when it allowed other crimes evidence against defendant during trial on a purse s to side of m of error to be under the res gestae rule 2 The trial court erred when it allowed defendant to be convicted charged beyond s and later determined the floorboard the defendant asserts the following two court or in the arrests and search of the vehicle consist of grams of marijuana arrests The trial introduced and Detective Mamie the floorboard of the vehicle Detective Kevin Johnson also block a arresting the defendant and Trosclair the officers search of the vehicle a the perpetrators vehicle within stopped the basis of evidence that was reasonable doubt the essential insufficient elements as to prove of the crime charged SUFFICIENCY OF THE EVIDENCE Assignment of Error Number Two In this assignment insufficient evidence was to of error the defendant contends the State support the conviction The defendant contends that he with the person who made the sale but he did the transaction took place his claim defendant further The defendant The defendant further was notes notes not enter that Trosclair that Pitre could the residence where s not testimony supports recall whether the in her residence at the time of the transaction notes that none of the officers observed him 4 presented enter The defendant the residence The defendant also notes that the serialized funds Finally the defendant the audio notes were located in Trosclair of the transaction recording s purse barely was audible The constitutional standard of review for evidence is whether prosecution viewing the evidence in the beyond 443 U S 61 L Ed 2d 560 307 99 S Ct 2781 enunciated in Jackson and 821 State v is applicable in La R S involving cases 15 438 provides evidence excludes every reasonable So 2d 1108 reviewing Rosiere reject 1116 La court in whole 6 24 05 or 1st Cir not assess 488 So 2d 965 0236 p 3 La La will App 968 in part the App 1st Cir most favorable to the light reasonable doubt Jackson La La v Virginia That standard 1979 When the factfinder hypothesis analyzing circumstantial must be satisfied the overall of innocence writ denied 617 nor State 2d So reweigh v Nevers 621 906 La 1993 the evidence testimony of any witness State v where there is of the weight of the evidence contradiction or or conflicting testimony credibility of the witnesses the matter is internal v 809 So 2d 549 552 writ denied 2004 2438 Moreover 2001 0236 State Gordon 2001 depends Gordon The The trier of fact is free to accept about factual matters the resolution of which sufficiency initially embodied within La Code Crim P 1983 1986 02 proved the both direct and circumstantial evidence credibility 15 2 904 So 2d 733 a legislatively now Smith 441 So 2d 739 741 evidence the sufficiency of the any rational trier of fact could conclude that the State essential elements of the crime art determining at p one 4 809 So 2d irreconcilable conflict upon at with a 552 determination of the not its In the absence of physical evidence the testimony of one witness if believed by the trier of fact is sufficient support for 5 the Cir factual conclusion requisite 12 3103 State 868 So 2d 775 782 Brown 2003 1076 p v writ denied 2004 0269 10 La La 1st 6 4 04 App 876 So 2d 76 R S La knowingly 1 A provides t or that it shall be unlawful for any person distribute o or intentionally substance dangerous are 40 967 classified in Schedule II listed in Schedule II recipients La R S 40 964 Schedule II A 4 La 2 28 96 See La R S 40 State 14 961 v or subject who Hines identified the defendant in control of cocaine On rebuttal the defendant Agent s to his p 4 residence first conducted the sale of the crack cocaine court station after the defendant s perpetrator guilty 668 So 2d 1132 1135 returned with the male police A defendant is Cummings 95 1377 Agent Hines testified that Trosclair entered Pitre the controlled a Cocaine and its derivatives of distribution of cocaine when he transfers possession intended dispense as Agent the person who conducted the sale arrest he identified the defendant Hines stated he had not Agent Hines stated he was as At the confused Trosclair with Although Trosclair and Pitre were both in the residence of the transaction She at the time certain that the defendant not Trosclair conducted the sale Pitre who Task Force during reluctantly confirmed her testified she could the transaction at issue defendant before his trial regarding the Possibly that not what I can a source of information for the remember whether the defendant She also could not recall if she had When asked whether she potential purchase s status as she stated answer you 6 sir I can t I present ever seen provided say yes was the information can t Pitre stated she has say no mental problems She stated she remembers Trosclair but would not have given information the defendant s using asked whether she was a name crack cocaine as she did not know the defendant When user at the time of the trial she responded Sometimes the trial During friends 4 According the defendant to Trosclair testified she and the defendant to Trosclair bring her discussed arrived to with Pitre to conduct Pitre s residence conducted the sale alone She further stated that she told the a was completely drug transaction After the sale to was complete leave with him entered the residence never the date of the offense she asked to her testimony received an eight The defendant did Although male voices 4 can Trosclair had year not the sentence prior was submitted car two they while Trosclair to Trosclair other people by the defense resulting In on the were A notarized statement distribution convictions for her conviction previously the defendant knocked Trosclair stated that testimony of her She stated that when According present during the transaction Agent Hines and Pitre Trosclair consistent with her unaware the defendant waited in the the door and told Trosclair defendant on acquiring clothing for her children from Pitre Trosclair the defendant plans at testimony Pitre s residence to defendant that she would be According s good were by According particular she from this incident testify at the trial audiotape of the transaction is not be heard amongst female voices Trosclair was identified in the trial record as entirely clear Agent Hines identified the other Shelley Trosclair Gaspard 7 two distinct male voice as that of the defendant whom the other male voice Where the belonged issue raised key to denied 2001 0197 4 1st Cir App circumstantial innocence guilty La La not the crime to was s identity committed 00 800 the conviction State So 2d a 822 and 18 12 2d So 163 161 v the as the State is 886 State 888 802 So 2d 641 Positive identification support 6 21 02 evidence 1st Cir App 7 12 01 witness is sufficient La the defense is the defendant negate any reasonable probability of misidentification Johnson 99 2114 p one by or perpetrator rather than whether required Trosclair stated that she did not know to v writ by only Davis 2001 3033 p 3 When a the jury reasonably rejects case involves hypothesis of presented by the defense that hypothesis falls and the defendant is unless there is another Moten 510 2d So 55 61 hypothesis La App that raises 1st Cir a reasonable doubt writ denied State 514 So 2d 126 v La 1987 The defendant does transaction took drug transaction took Pitre s place deny but rather admits being not Further place Rather the defendant urges he testimony is untruthful as it is mistaken Trosclair for the defendant the jury jury s the defendant does residence when Trosclair made the sale Hines accepted Agent credibility that the jury Hines determination reasonably rejected that sufficient evidence was s at not In essence was the scene while the not deny that the not present inside his claim is that Agent likely that Agent Hines could have However the conviction herein shows that testimony Based This on our the defendant s introduced 8 at court will not review of the hypothesis trial to second guess the testimony of innocence we find We find establish all elements of the offense and This sufficiently negate assignment of error is any reasonable of misidentification probability without merit OTHER CRIMES EVIDENCE Assignment of Error Number One In assignment erred in court of admitting error number other crimes evidence under the defendant notes that reference to the been easily Lab report Kimberly not to excluded to The defendant also to Generally the as res or courts was may acts may of the present that the State could proximity not admit evidence story of the crime of other art not they Res not to gestae are so trial State v conduct events case required act or a by proving its immediate Colomb 98 2813 9 p 3 to the other crimes to are charged offense to charged A them offense and by admission of other but rather to context La a with his bad without reference man show transaction that is the between the bad to formerly referred constituting insure that the purpose served depict defendant as on conformity nearly connected accurately present its to to cnmes evidence of other crimes l 404B integral part of the in time and location is crimes evidence is place an proceeding the other crimes evidence time and essential and could have redacted be introduced when it relates deemed admissible because close The marijuana and admonished Deputy of bad character who has acted in a man gestae that constitutes subject gestae doctrine that the State redacted the Crime notes character However under La Code Evid wrongs was not res the evidence custodian of the Lafourche Parish Sheriffs Office discuss the fact that it defendant is marijuana exclude any reference Pitre the defendant contends that the trial one of 1 10 99 complete happenings the near in 747 So 2d 1074 1076 The gestae doctrine in Louisiana is broad and includes not only res spontaneous utterances and declarations made before or the crime but also officers testimony heard or observed before they continuous chain of 407 So 2d 693 also of witnesses and events 698 incorporates a La during 1981 rule of narrative The Louisiana 1076 multiple crimes committed in a act res crimes committed in his 1145 La 1981 State v Herein Meads 98 1388 La p v 7 15 10 but one or more to was wrapped App not The defendant removed the complete the transaction We conclude that the conduct 1st Cir marijuana bag find no all of the 1 4 99 734 that contained the from his crotch The marijuana at was were recovered area merit to this to and Agent during the search removed from the vehicle issue the possession of the marijuana constitutes integral part of the cocaine transaction See La Code Evid we gestae 748 So 2d 465 inside of the of the vehicle after the defendant and Trosclair an at p Washington 407 So 2d 1138 La 99 as res separated it from the crack cocaine before passing the crack cocaine Hines s case Agent Hines testified that the evidence forming the basis for the instant offense crack cocaine marIJuana Kimble v See Colomb 98 2813 of conduct is admissible of conduct State So 2d 792 797 writ denied 99 1328 a Supreme Court has held that evidence of single course course what evidence in Louisiana gestae and cohesiveness the trial of the accused for the commission of at State without which the State completeness 4 to after the commission of the crime if Integral momentum at pertaining is evident under the circumstances would lose its narrative 747 So 2d or police after the commission of assignment of error 10 art 1 404B Thus REVIEW FOR ERROR The defendant asks that this Code Crim P art 920 2 whether 920 2 or not we are a This court proceedings review of the record in these State v review to our without 18 22 a under La reviews the record for such discoverable inspection La error error request Under La Code Crim P errors proceedings Price 2005 2514 pp examine the record for routinely defendant makes such limited in the pleadings and court we App by a mere inspection of of the evidence have found art no After reversible 1st Cir 12 28 06 a careful errors See 952 So 2d 112 123 25 DECREE For these adjudication reasons and we affirm the defendant s conviction habitual offender sentence CONVICTION HABITUAL OFFENDER SENTENCE AFFIRMED 11 ADJUDICATION AND
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