State Of Louisiana VS Huey M. Mooney, III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 KA 2105 STATE OF LOUISIANA VERSUS HUEY M tt MOONEY III Judgment Rendered 1m On mil District State of Louisiana Docket No 417039 Reed Judge Presiding Counsel for Appellee State of Louisiana Attorney Covington 8 2009 Appeal from the Twenty Second Judicial District Court In and For the Parish of St Tammany Honorable Peter J Garcia Walter P MAY Louisiana Kathryn W Landry Special Appeals Counsel Baton Rouge Louisiana Jerry L Fontenot Covington Louisiana BEFORE Counsel for Defendant Huey PARRO M Mooney III McCLENDON AND WELCH JJ Appellant McCLENDON J Huey M Mooney intent to distribute Defendant possession with 40 967A 1 s R felon violation of LSA a Count 5 a motion to suppress guilty and counts at the defendant years was s R 14 95E s R and violation a possession of a on Boykin hearing entered Crosby pleas of guilty challenge the trial court to ruling s s R violation of Count 3 a by a convicted pled not guilty to all hearing a LSA possession of cocaine firearm Defendant Following a c10nazepam firearm while in 14 95 1A of Count 2 Thereafter defendant withdrew his the matter the prior pleas of charged as on the not to all motion to Crosby 338 SO 2d 584 La 1976 v possession with intent to distribute cocaine conviction sentenced to twenty five years imprisonment of the sentence to be served suspension of sentence The Defendant admitted to the allegations second a motion to suppress denied was See State For the two a reserving his right suppress 1 Count to distribute possession of violation of LSA Defendant filed counts cocaine possession with intent violation of LSA R S 40 969A 1 Count 4 charged by bill of information with was possession with intent to distribute methadone 40 967A 1 LSA III felony habitual offender 1 of probation parole or multiple offender bill of information a in the 1 at hard labor with the first without benefit state filed Count multiple bill and he The trial court vacated the previously imposed and resentenced defendant to was adjudicated twenty five year a sentence twenty five years imprisonment at hard labor with the first two years of the sentence to be served without benefit of probation distribute parole or methadone imprisonment suspension of sentence conviction at hard without benefit of probation parole The imprisonment predicate bodily injury was for an was or suspension of to sentenced to ten years sentence c10nazepam conviction Count 3 at hard possession of cocaine conviction 1 defendant possession with intent labor with the first two years of the sentence to be served with intent to distribute ten years Count 2 For the labor For the Count 4 unrelated crime in Tennessee 2 defendant possession of defendant namely an For the was a was possession sentenced to firearm while in sentenced to ten years aggravated assault causing serious sentence On the defendant possession of firearm a sentenced to ten years was probation labor without benefit of at hard imprisonment or parole by a probation parole suspension of or convicted felon conviction at hard labor without benefit of imprisonment suspension of sentence Count 5 All sentences ordered to were run concurrently Defendant court ruling s now appeals designating assignments of regarding the trial error his motion to suppress the evidence and statement on convictions and the habitual offender sentence cocaine sentence Count 3 Count 4 sentence Count 5 sentence Count 2 the possession with possession of and the We amend the to delete the the We affirm the We affirm the adjudication Count 1 intent to distribute cocaine sentence c10nazepam two a possession of possession with intent to distribute firearm while in firearm a by possession of convicted felon a possession with intent to distribute methadone provision without parole affirm as amended and remand with instructions FACTS As there was trial no the facts were documentary evidence and testimony given established by the introduction of at the motion to suppress On hearing February 22 2006 Detective Charles Landrum and other officers with the St Tammany Parish Sheriff s Office received male and female were having a an call from dispatch about argument in a a rolling disturbance white Cadillac Escalade travelling A on La Highway 1083 At the intersection of La observed standing in the middle of the road a woman Samantha Brownlow hysterical and crying was covered bleeding by Landrum saw a a driveway in the driveway La and The her clothes identified woman were torn hysteria Detective Landrum found was able to ascertain that Highway 40 pulling out of notified The blood Finally he on white Escalade Detective Landrum stopped in Because of her get any information from her and Highway 40 and La Highway 1083 Detective Landrum a was it difficult to male Looking down the road was hurt Detective driveway the other officers and the white driveway and related house 3 a She as were owned Escalade was by defendant Edwin Bedford and was III the occupant of the Escalade Detective Landrum bleeding profusely the door open the in the keys Landrum also observed front door of defendant a s ignition and if there was a Rowland opened black laying possible perpetrator inside driveway with plain view Corporal McCormick and Deputy Rowland closet door a upstairs near triple beam scale cocaine residue a used from the house and obtained defendant Detective porch and stayed by the went to the rear of s or a Corporal McCormick perpetrators bedroom and observed illuminated char boy smoking filters and search warrant a with cocaine residue three pistol a a Instead the officers withdrew Upon execution of the search warrant Most of these items twelve triple beam scale and three digital scales a drug ledgers other drug paraphernalia Mac 11 machine gun with and six other rifles by Century safe police seized approximately nine grams of cocaine three baggies of HCL 357 was straight shooter narcotics smoking pipe containing Klonopin tablets three Methadone wafers a in same Detective Landrum Corporal McCormick did not seize the contraband the arm Corporal McCormick made entry through the back door and he and Deputy light suspected truck in the anyone inside the house who was began searching the house for victims a his house front of the house while the house on trail of blood that led from the Escalade to the Detective Landrum did not know if there or a wallet a laceration a severe unable to obtain any information was However Detective Landrum observed from Edwin injured had unregistered silencer an were found upstairs in loaded a an 38 pistol SKS assault rifle or near defendant s bedroom Defendant was subsequently arrested police wherein he admitted in his house Brownlow s There was one having apparently hysterical condition Samantha and Edwin lived either to near or some no He gave a written of the above described statement to the drugs and weapons connection between defendant and Samantha Edwin defendant of them 4 Bedford s injuries While it appeared defendant testified that he did not know ASSIGNMENT OF ERROR NUMBER ONE In his first assignment of to suppress the evidence denying his motion warrantless intrusion into his home was a defendant argues that the trial court erred in error Specifically defendant contends that the without probable exigent circumstances cause or violation of the United States and Louisiana Constitutions Trial courts Consequently absent an the ruling of a trial great discretion when ruling judge abuse of that discretion So 2d 1176 In vested with are 1179 cert denied on a State v s U 977 544 on a motion to suppress motion to suppress will not be disturbed Long 03 2592 p 5 La 9 9 04 161 L Ed 2d 728 125 S Ct 1860 All right Regarding the seizure of the items within the house I police officers acted reasonably in their initial entry into the residence based on that the trail of blood of the house the incident that contended to be unrelated in was by uncontroverted testimony that led up to the front they would have been derelict in their duties not to determine if anything was amiss in the house and I I think go into the house to don t think that a cursory examination of the first floor would revealed and that it have necessary for them to go of the house to determine whether or necessarily anything beyond that and into other areas not the blood led to something else or some other incident occurred some person was in the house that they needed to render assistance to through was they were and based upon sufficient probable cause I think that portion of the Motion to Suppress me reason to gives The Fourth Amendment to the United States Constitution people to be secure in their papers very person shall be and effects LSA Const art So 2d 923 927 I 9 5 his person v Brisban 00 3437 or pp consent is unreasonable unless it v against property communications Except in certain narrowly defined classes of valid search warrant State effects right of Similarly the Louisiana Constitution provides secure in See State and deny t he protects papers against unreasonable searches seizures property without proper One houses persons unreasonable searches and seizures e or reasonable in every aspect of their movement the house and the fact that a warrant was subsequently obtained So I think that 2005 denying the motion to suppress the evidence the trial court stated think the the 884 invasions of 4 5 cases La a houses privacy 2 26 02 search of 809 private has been authorized by a Ludwig 423 So 2d 1073 1075 La 1982 carefully defined exception throughout the United States is the so to called 5 the warrant emergency requirement exception See recognized Mincey v Arizona 437 s U 385 assistance to a person enter a entitled to make s U 17 21 s U at 392 the Ludwig 423 So 2d was direction hurt III Bedford he observed who pointing was in was Landrum in the it ignition appeared The burden of exception 399 So 2d 172 standing a woman as driveway to a 175 76 La 1981 called were The on only that La and a woman was Highway 40 pulling out of identified woman he a and the white Escalade was a man in the middle of the road at and she as was bleeding and in that Looking driveway was stopped Edwin severely injured and bleeding profusely unable to obtain any information from Edwin Edwin was hospital and if showing that is on the state Her clothes were torn white Escalade saw a the Escalade to the police may 1 Cir 1984 hysterical and crying police officers by helicopter keys White v Mincey 437 legitimate emergency rolling disturbance involving a Detective Landrum observed the at 2413 Louisiana v Also the of their course Samantha told Detective Landrum Detective Landrum airlifted at 1075 76 Highway 40 and La Highway 1083 was while per curiam a Detective Landrum established at the motion to suppress Detective Landrum Other 1984 83 L Ed 2d 246 See State in a white Escalade covered in blood Thompson confines of the emergency hearing that while responding to Samantha Brownlow exception police officers See premises Ludwig 423 So 2d narrow at 1076 the intersection of La warrant to render emergency a under this plain view during the In the instant matter he the Aspin 449 So 2d 49 51 La App v arguing Further Mincey 437 U S at 393 98 S Ct entry fell within the State on 411 105 S Ct 409 98 S Ct at 2413 See Under this quick search of premises to determine the presence of a seize any evidence that is in activities 1978 to be in distress and in need of such they reasonably believe perpetrator who might still remain 469 dwelling without Ludwig 423 So 2d at 1075 assistance 57 L Ed 2d 290 98 S Ct 2408 2413 police officers may exception are 392 a a truck in the wallet laying someone was Detective Landrum also observed porch and front door of defendant a s in in the same driveway with the door open plain view truck or According tried to to Detective get in the vehicle trail of blood that led from the Escalade to the house 6 Detective Landrum did not know if there injured or if there was a kind of make was sic injuries and entry not Detective Landrum testified sure had we anyone inside the house who When asked possible perpetrator inside what he then decided to do McCormick was if there no was someone in on Well was direct examination myself and Corporal the house that had sustained any information from the two victims We decided to to try to make sure no one was in the house hurt unconscious Several officers for any victims or including Corporal McCormick entered the house and searched When perpetrators Corporal McCormick opened a closet door upstairs he observed drug paraphernalia inside the closet Corporal McCormick did not seize the contraband warrant search to Instead seize the officers withdrew from the house and obtained what already been found and had to search for a other contraband Detective Landrum testified the scene that any other party on cross was examination that there house sure they entered the house Was that a was We find that in their warrantless hysterical woman someone was in the hospital clear home He On redirect examination entry and search covered in blood no keys the house individual in the Detective Landrum well as as in the bleeding was asked anybody that might have pointing to In that so a driveway the officers found badly injured that he had additional information other than and a were an justified unknown driveway and indicating only that a truck in the an unidentified to be airlifted to the blood trail leading from the driveway with an open door ignition the officers could have reasonably suspected foul play inside Objectively viewed the facts created the inference that or a seeing blood Police officers had encountered Escalade to the front door of the house and response to the no specific circumstances herein the officers suspect white Escalade With He further Yes responded under the hurt and not on According to Detective Landrum the officers wanted to make dangerous situation for the officers been in that man despite there being identifying themselves before entering and despite as evidence involved besides Samantha and Edwin testified that the officers searched the house officers was no perpetrator was present in defendant 7 s house an injured bleeding The apparent need for emergency action was Therefore the search reasonable was valid We also find that the given the information available as an to the search warrant An view Two conditions must be satisfied to there must be must be a prior justification for Immediately apparent associate the Cir 9 15 06 As established defendant plain protected no State v writ denied than more and 1 2 it evidence or area are probable cause to Young 06 0234 p 6 La App 06 2488 5 4 07 La 1 956 So 2d Corporal McCormick had prior justification for his intrusion into home s requires 1122 23 in plain trigger the applicability of the doctrine property with criminal activity 943 So 2d 1118 requirement requirement also exists for items intrusion into the an officers in the closet was in immediately apparent without close inspection that the items contraband 606 to the warrant drug paraphernalia discovered view exception exception emergency to the Further when he opened the closet door upstairs immediately apparent that the drug paraphernalia he saw was it was associated with criminal activity Accordingly the trial court did not abuse its discretion suppress the evidence This assignment of error in denying the motion to is without merit ASSIGNMENT OF ERROR NUMBER TWO In his second assignment of denying his motion to suppress his contends his statement Before shown that it intimidation a confession was free and menaces be established interrogation was also of a was not a 1150 La 2 Miranda not App v be introduced into evidence are inducements accused or who accorded Arizona 1990 384 U S writ denied promises makes a 2 it must be LSA defendant affirmatively s R 15 451 confession Since the rights court its conclusions It must during custodial general admissibility on the credibility and great weight and will not be overturned unless supported by the evidence 1 Cir Specifically not made under the influence of fear duress question for the trial weight of the testimony are an police in intelligently and voluntarily given voluntary and threats that statement to the first advised of his Miranda confession is they can defendant argues the trial court erred error See State 577 SO 2d 11 436 86 S Ct 1602 8 v La 16 LEd 2d 694 Patterson 1991 1966 572 SO 2d 1144 The trial court must consider the totality of the circumstances admissible State direct Hernandez s statement was 589 90 1975 La determining whether 432 So 2d 350 testimony of the interviewing defendant 587 v in 352 police officer 1 Cir App be can freely and voluntarily given State La not a confession is or 1983 sufficient to See State v The Sims 310 So 2d Washington 540 SO 2d 502 507 08 La App v a prove 1 Cir 1989 Sergeant Darren Blackman with the St Tammany Parish Sheriff s Office testified at the motion to suppress hearing that following the execution of the search warrant of defendant s house defendant was Defendant advised of his Miranda was rights Defendant rights Sergeant Blackman also signed and dated the waiver of rights form to signed both arrested a statement of Miranda rights and Sergeant Blackman defendant indicated he understood his rights appear to be intoxicated drugged or which is safe 4 According Defendant did not type spoke with Sergeant Blackman about the circumstances which led up to the execution of the search warrant statement waiver of those mentally ill Sergeant Blackman stated defendant did not appear to be under the influence of any Defendant a as Defendant subsequently provided a written follows I had in my On Feb 22 when my house on hwy 40 25025 bush eight balls of cocaine and a loaded 357 which belong to CJ Their wherh also guns in my attic that wherh found that belong to 0 and TJ In my closet were also a thriple beam that Brodrick had left at my house I also had some methadon and According never to klopon coerced Defendant s statements Also no posastion promises were were speaking or defendant work asked if the throughout were kind of deal out with police made He stated he a or was to have an attorney neither threatened nor made to defendant to induce his confession made to him responded in the affirmative some affirmative promises writing voluntary and he Defendant testified at the motion to suppress examination if any sic Sergeant Blackman during the entire interview process defendant indicated that he wished to stop present in my him promise by the police He stated he but hearing was 9 to get him thought they apparently to go easy on him thought he When asked going to get he was defendant some was on direct to confess sic going mistaken responded to When in the kind of deal if he went ahead and signed defense counsel to confess kind of confession some the trial court asked defendant what he Defendant stated In its Following questioning by the reasons for A sentence and some lighter promised was state and to induce him drug rehab the motion to suppress the statement the trial court denying stated Regarding the statement made by Mr Mooney his testimony was internally inconsistent I believe that he testified he may have received something he wasn t quite sure himself And the police officers testified they absolutely did not offer him anything in return for his written confession I think he may have in his mind felt that he was going to obtain some gain by doing that but I don t know if the testimony supports a finding that anything was promised that he or was coerced in any way to make his statement The record establishes that defendant voluntarily given by the record defendant s This s statement Further We agree on the trial court s determination court did Accordingly the trial was credibility not abuse its was freely and supported discretion in denying motion to suppress his statement assignment of is without merit error SENTENCING ERRORS Inasmuch the as an illegal sentence is an error discoverable by proceedings without inspection of the evidence LSA C Cr P consideration of such an error on methadone conviction Count 2 For the appeal defendant was inspection of a mere art 920 2 authorizes possession with intent to distribute sentenced to ten years imprisonment at hard labor with the first two years of the sentence to be served without benefit of probation parole or suspension of sentence pre amendment 2006 version of LSA shall be sentenced to nor more than the denial of thirty years The crimes 15 were 2006 of nor the committed in on February has to 3 sentencing provision which at hard labor for not less than two years s raised sentence was unlawful this Acts 2006 in issue No 68 part by removing subparagraph B 4 b 10 is the provides that defendant parole restriction under this provision of 2006 40 967B August paragraph B l and adding methadone inapplicable to the instant matter no defendant state amended LSA R S s R 40 967B 1 imprisonment There is parole eligibility neither defendant 3 a term The correct on 9 Thus We note that appeal However 2 which became effective methadone from the Therefore applicability in on of this amendment is accordance with LSA C Cr P restriction art 882A amend the sentence to delete the we Resentencing is not required parole This matter is remanded to the trial court with instructions to correct the minutes and commitment order if necessary to reflect this amendment to the sentence Whoever is found guilty of possession of shall be fined not less than See LSA R S impose a 14 95 1B fine Therefore sentence is not has raised this v firearm thousand dollars by nor more a convicted felon sentencing defendant for this crime the trial defendant s sentence is sentencing issue La 2 22 08 La on appeal we App 1 Cir 12 28 06 Count 5 than five thousand dollars court failed to illegally lenient However since the inherently prejudicial to defendant and neither the Price 05 2514 0130 In one a state nor defendant decline to correct this 952 So 2d 112 en banc error See State writ denied 07 976 So 2d 1277 CONVICTIONS AND HABITUAL OFFENDER ADJUDICATION AFFIRMED POSSESSION WITH INTENT TO DISTRIBUTE COCAINE SENTENCE COUNT 1 POSSESSION SENTENCE COUNT COCAINE 3 WITH SENTENCE CONVICTED INTENT POSSESSION TO A OF COUNT 4 FELON SENTENCE DISTRIBUTE FIREARM AND POSSESSION COUNT 5 AFFIRMED INTENT TO DISTRIBUTE METHADONE SENTENCE AFFIRMED AS AMENDED COMMITMENT ORDER CLONAZEPAM WHILE REMANDED IF NECESSARY 11 TO IN POSSESSION OF A FIREARM OF BY A POSSESSION WITH COUNT 2 CORRECT AMENDED AND MINUTES AND
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