State Of Louisiana VS Ruben Dario Cisnero
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0138 STATE OF LOUISIANA VERSUS RUBEN DARIO CISNERO Judgment Rendered September 10 2010 Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 01 070653 The Honorable Anthony J Marabella Judge Presiding Hillar C Moore III District Attorney Jeanne Rougeau Assistant District Attorney Baton Rouge Louisiana Counsel for Appellee Frederick Kroenke Counsel for DefendantAppellant Baton Rouge Louisiana Ruben Dario Cisneros Ruben Dario Cisneros Appellant Defendant In Proper Person Cottonport Louisiana State of Louisiana BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY J The defendant Ruben Dario Cisneros was charged by bill of information with possession of 400 grams or more of cocaine a violation of La R 40 Defendant pleaded not guilty and following a jury S 967 c 1 F trial was found guilty as charged Defendant was sentenced to 30 years at hard labor with the first 15 years of his sentence to be served without benefit of probation parole or suspension of sentence The trial court also imposed a 250 fine 000 Defendant now appeals designating one counseled assignment of error and four pro se assignments of error For the following reasons we affirm the conviction and sentence FACTS On November 20 2006 just after midnight Officer Wally Cowart and Corporal Brett Hart of the Baton Rouge City Police were patrolling Interstate Highway 12 in a marked unit While heading eastbound near the s highway intersection with Drusilla Lane Officer Cowart observed a tractor trailer unit or eighteen wheeler truck intrude into the right lane of travel several times without signaling Based on the observed improper lane usage Officer Cowart initiated a stop of the truck Defendant was the driver and sole occupant A video camera mounted on Officer Cowart unit s recorded the stop A wireless microphone on Officer Cowart person also s recorded the verbal conversations between the officers and defendant After defendant exited the truck Officer Cowart learned defendant was traveling from Brownsville Texas to North Carolina with a documented shipment of fire extinguisher powder At trial Officer Cowart testified that defendant was nervous and that during the course of the stop his 1 Throughout the appellate record including the bill of information defendant surname s is spelled Cisneros However in his pro se brief defendant signed his name as Ruben D Cisneros Also a copy of defendant driver license in the record lists his surname ss as Cisneros Accordingly we refer to defendant as Cisneros 2 nervousness increased Officer Cowart testified that based upon his training and 16 years experience patrolling the interstate highway he knew the drug routes originated in Mexico and funneled up to the interstate highway systems in Texas According to Officer Cowart south Texas including the Kingsville Brownsville and McAllen areas along the border is the primary source of drug trafficking in the United States Typically the drugs traveled eastbound and the sales profits traveled back westbound Officer Cowart asked defendant for permission to search the truck Defendant consented to the search Officer Cowart climbed into the cab and sat on the sleeper behind the front seats He opened the closet next to the sleeper and observed a backpack beneath which were 22 packages kilos of cocaine wrapped in black tape Two more kilos of cocaine were found inside a cell phone box inside the backpack Defendant was arrested and the truck was transported to the Drug Enforcement Administration DEA office on Acadian Throughway to do a more thorough search At the DEA office officers found a torque wrench head in the glove compartment of the cab The officers discovered that the cushions of the sleeper were attached to the walls with torque screws After removing those torque screws officers found another 28 kilos of packaged cocaine very similar to the cocaine found in the cab closet behind the rear passengerside and driverside walls of the cab In summary a total of 52 kilos was found in the cab of the truck According to Officer Cowart the street value of the cocaine was over 00 000 000 1 The actual total weight of all of the cocaine was 59 94 kilograms 2 Each package of cocaine was in a brick form commonly referred to as a kilo One kilogram equals 2 pounds Each brick of cocaine seized actually weighed between 000 1 grams one kilogram and 1 grams 1 kilograms 300 3 3 At trial the state and defendant entered a joint stipulation that if the fingerprint expert were to be called she would testify that latent fingerprints and palm prints were taken from several of the wrapped bundles of cocaine and that the prints did not match defendant prints s Defendant did not testify at trial COUNSELED ASSIGNMENT OF ERROR In his sole counseled assignment of error defendant argues the trial court erred in allowing the introduction of other crimes evidence at trial Specifically defendant contends that defense counsel did not open the door during his cross examination of Officer Cowart to allow the prosecutor to question Officer Cowart about defendant prior drug s conviction on redirect examination Following the prosecutor direct examination of Officer Cowart s defense counsel asked Officer Cowart among other questions if defendant had been truthful with him about his point of origin and destination on his truck route as well as about the cargo being transported Officer Cowart responded that defendant responses regarding those subjects was true as s far as he knew since that information was confirmed by the paperwork defendant gave him at the scene Subsequent to Officer Cowart cross examination the following s relevant exchange between the prosecutor and Officer Cowart took place Q Now Mr Leblanc defense counsel asked you several questions about the defendant being truthful and that based on the log book and your conversation he was traveling to a location uh was it Nu Nubain sic A North Carolina Yes sir Q North Carolina And I believe Mr Leblanc words were he s was truthful when he made that statement correct A Correct 4 Q All right And in fact there were several questions by Leblanc in that regarding Cisneros truthfulness as he was s conversing with you A Yes sir Q All right Based on your contact with Cisneros do you believe that he was completely truthful with you or the other officers during that conversation A No sir I do not Q Why not A Well for instance some of the questions he was asking me I couldn actually prove whether the uh Mr Cisneros was t telling me the truth but on one of the questions I asked him I know he lied to me Q Which question was that A If he had been ever ever been arrested for a a narcotics At that point defense counsel objected on the ground that evidence of arrests was not admissible In overruling the objection the trial court stated s it not admissible for some Well but it might it might purposes but it admissible for other purposes And you asked s him if he was telling you the truth and you attenuated sic that everything he told you is true and he has found something he t didn tell him was true so I going to let it in m The dialogue between the prosecutor and Officer Cowart thereupon continued Q So officer let go back Mr Leblanc indicated that he the s defendant was being truthful with you You didn believe he t sic to be completely truthful did you A No sir Q In fact I think you indicated he lied to you A Yes sir Q Cisneros A Yes sir 5 Q What was the question A I had asked him if he had ever been arrested for a narcotics charge Q And do you recall his response A He said no Q And ultimately you found that to be a lie A Yes sir Q Why A Well during the traffic stop when I was back at my computer running a criminal history traffic check the run his s driver license number a criminal history check showed he had been arrested for a felony drug charge before Q In fact he had been convicted of a felony drug charge based on your criminal history search correct A Correct Defense counsel again objected at that point The objection was overruled Louisiana Code of Evidence article 404 provides in pertinent part A Character evidence generally Evidence of a s person character or a trait of his character such as a moral quality is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion except 1 Character of accused Evidence of a pertinent trait of his character such as a moral quality offered by an accused or by the prosecution to rebut the character evidence provided that such evidence shall be restricted to showing those moral qualities pertinent to the crime with which he is charged and that character evidence cannot destroy conclusive evidence of guilt B Other crimes wrongs or acts 1 Except as provided in Article 412 evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith It may however be admissible for other purposes such as proof of motive opportunity intent preparation plan knowledge identity absence of mistake or accident provided that upon request by 3 the accused the prosecution in a criminal case shall provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding Louisiana Code of Evidence article 609 entitled Attacking 1 credibility by evidence of conviction of crime in criminal cases provides in pertinent part A General criminal rule In a criminal case every witness by testifying subjects himself to examination relative to his criminal convictions subject to limitations set forth below B Convictions Generally only offenses for which the witness has been convicted are admissible upon the issue of his credibility and no inquiry is permitted into matters for which there has only been an arrest the issuance of an arrest warrant an indictment a prosecution or an acquittal In his counseled brief defendant suggests that the trial court permitted the testimony regarding his prior arrest and conviction because defense counsel during his cross examination of Officer Cowart had broached the subject of defendant honesty Defendant argues however that the trial s s court ruling was in error because defense counsel was not attempting to establish a defense or attack the credibility of Officer Cowart either of which could be seen as opening the door Instead according to defendant defense counsel was attempting to demonstrate to the jury that defendant did not have the usual attitude of a person carrying drugs In its brief the state suggests the testimony of defendant arrest and s conviction was properly allowed under La C art 404 According E 1 A to the state it was entitled to introduce evidence of defendant bad s character in rebuttal because defendant himself placed his character at issue by introducing evidence purporting to show his good character The state contends that the testimony makes clear that it was not attempting to 7 introduce evidence of defendant criminal history to prove bad character or s that he acted in conformity therewith Instead the state contends that the prosecution was attempting to rebut the suggestion that defendant was honest with Officer Cowart an issue defendant brought before the jury during cross examination Initially we observe that that it is unclear why the state sought to develop testimony regarding defendant prior drug arrest and conviction s but it appeared to be an attempt to attack defendant credibility by evidence s of a conviction of a crime Defendant did not take the stand to testify in the instant matter Under La C art 609 the state cannot introduce E 1 evidence of a prior conviction unless the defendant testifies thereby subjecting himself to examination about his criminal convictions See State v Powell 28 p 6 La App 2nd Cir 11 683 So 1281 1286 788 96 1 2d writ denied 97 0092 La 5 694 So 243 97 30 2d Further we find unpersuasive the state argument that the evidence s was admissible under La C art 404 Comment d to article 404 E 1 A states that subparagraph A preserves the traditional rule that an 1 accused has the option to introduce evidence of his character with respect to the pertinent trait involved in the crime charged The comment further states If the accused affirmatively exercises this option the prosecution may then offer evidence to rebut the character evidence thus offered by the accused as to the pertinent character trait involved in the crime By taking the stand as a witness an accused does not thereby put his general character at issue nor his character as to the pertinent trait involved in the crime but only his credibility as a witness La C art 404 Comment d See also State v James 569 So 135 137 E 2d 2 n La App 1st Cir 1990 Here defendant did not take the stand and presented no character or defense witnesses As such we do not find that 3 defendant affirmatively exercised the option to introduce evidence of his character by way of defense counsel cross examination of a state witness s s on the subject of defendant apparent legitimate status as a truck driver s See State v Vessell 450 So 938 946 La 1984 2d The issue ultimately is whether defense counsel opened the door regarding defendant general truthfulness during his cross examination of s Officer Cowart When defense counsel established during cross examination that defendant had been truthful regarding his truck route and documented cargo defense counsel then established with several more questions that defendant had denied knowing about the cocaine 3 It is arguable therefore that defense counsel sought to impress upon the jury that if defendant was truthful in general then he was truthful about his lack of knowledge of the cocaine As such the door would have been opened on redirect examination for the prosecutor at least insofar as defendant s prior drug arrest was concerned to explore if defendant had been consistently truthful with Officer Cowart See State v Jackson 98 277 pp 612 La App 3rd Cir 2 734 So 658 66264 99 3 2d However we need not decide the foregoing issue because we find the trial court erred in admitting testimony regarding defendant prior drug s conviction The video recording of defendant traffic stop shows that after s 3 Whether there was an outright denial of knowledge of the cocaine is unclear The relevant exchange between defense counsel and Officer Cowart was as follows Q Did he ever admit any knowledge of the cocaine A No sir He did not Q Did he not in fact deny that he knew anything about it A Well his exact words to me was that he didn want to talk about it t He didn have anything to say t Q But he denied knowing about the cocaine A That correct Yes sir s z defendant was arrested and read his rights under Miranda Officer Cowart asked defendant Have you ever been arrested for drugs before Defendant responded that he had not Officer Cowart determined that defendant had lied to him because a computer check indicated defendant had a drug conviction Thus after defense counsel arguably opened the door on cross examination the prosecution would have been allowed to question Officer Cowart about whether or not defendant lied about any prior drug arrests However Officer Cowart did not ask defendant at the scene if he had ever been convicted of a drug charge Thus when the prosecution gratuitously offered on redirect examination In fact he had been convicted of a felony drug charge based on your criminal history search he exceeded the scope of what opening the door would have allowed See State v Washington 03 1135 pp 712 La App 5th Cir 1 866 So 973 04 27 2d 978 81 Jackson 98 277 at pp 8 10 734 So at 663 64 2d Testimony of the defendant prior drug conviction therefore should s not have been allowed into evidence either to attack credibility or as other crimes evidence See La C arts 404 and 609 B We also E 1 B A 1 note that neither at trial nor on appeal did the state suggest that any of the exceptions listed in La C art 404 were applicable The other crimes E B evidence of a prior drug conviction had no independent relevancy besides simply showing a criminal disposition See State v Lafleur 398 So 2d 1074 1080 La 1981 The erroneous admission of other crimes evidence is a trial error subject to harmless error analysis on appeal State v Johnson 941379 p 17 La 11 664 So 94 102 The test for determining whether an 95 27 2d error is harmless is whether the verdict actually rendered in this case was surely unattributable to the error Sullivan v Louisiana 508 U 275 279 S 10 113 S 2078 2081 124 L 182 1993 Johnson 94 1379 at p 14 Ct 2d Ed 664 So at 100 2d In this matter we find defendant could not have been prejudiced by the prosecution mention of a prior drug conviction The defendant was s found transporting 52 kilos of cocaine While some of the cocaine was hidden in compartments behind the sleeper upholstery to which only a torque wrench would allow access 22 kilos of the cocaine were found in the closet right next to the sleeper Officer Cowart testified that as he sat on the sleeper he simply reached over and opened the closet door The closet door was not locked Thus defendant while driving the truck for at least a day was seated only feet away from an unlocked closet full of packaged cocaine The state evidence clearly established defendant guilt s s As such the guilty verdict rendered was surely unattributable to Officer Cowart s testimony as to defendant prior drug conviction and any error in allowing s such testimony to be heard by the jury was harmless See Sullivan 508 U S at 279 113 S at 2081 La C art 921 Ct P Cr The counseled assignment of error is without merit FIRST PRO SE ASSIGNMENT OF ERROR In his first pro se assignment of error defendant argues the evidence was insufficient to support the conviction Specifically defendant contends the state failed to prove he knowingly or intentionally possessed the illegal drugs A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend XIV La Const art 1 S 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements 11 of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 S 319 99 S 2781 2789 61 L 560 1979 Ct 2d Ed See La C art P Cr B 821 State v Ordodi 060207 p 10 La 11 946 So 654 660 06 29 2d State v Mussall 523 So 1305 130809 La 1988 2d The Jackson standard of review incorporated in article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La R 15 provides S 438 that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 01 2585 pp 4 5 La App 1st Cir 6 822 So 141 144 02 21 2d To support a conviction for possession of cocaine in violation of La S 967 R 40 the state must present evidence establishing beyond a c 1 F reasonable doubt that 1 the defendant was in possession of the drug 2 the defendant knowingly or intentionally possessed it and 3 the amount possessed was 400 grams or more of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule II of La R 40 State v Major 03 3522 p 7 La 4 A S 964 04 1 12 888 So 798 802 2d Possession of narcotic drugs can be established by actual physical possession or by constructive possession State v Trahan 425 So 1222 2d 1226 La 1983 A person can be found to be in constructive possession of a controlled substance if the state can establish that he had dominion and control over the contraband even in the absence of physical possession State v Harris 940970 p 4 La 12 647 So 337 338 39 per 94 8 2d curiam See Major 033522 at p 7 888 So at 802 2d A determination of whether there is sufficient possession of a drug to convict depends on the peculiar facts of each case Trahan 425 So at 2d 12 1226 Although mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession our supreme court has acknowledged several factors to be considered in determining whether a defendant exercised sufficient control and dominion to establish constructive possession including 1 his knowledge that drugs were in the area 2 his relationship with the person if any found to be in actual possession 3 his access to the area where the drugs were found 4 evidence of recent drug consumption and 5 his physical proximity to drugs State v Toups 01 1875 p 4 La 10 02 15 833 So 910 913 See Major 03 3522 at pp 78 888 So at 802 2d 2d The evidence at trial established defendant by virtue of his dominion and control over the eighteenwheeler as its driver exercised dominion and control over the large amount of cocaine stored in the sleeper closet and hidden behind the walls of the sleeper in the cab See State v Walker 03 188 p 7 La App 5th Cir 7 853 So 61 65 66 writ denied 03 03 29 2d 2343 La 2 865 So 738 holding that the driver and sole passenger 04 6 2d had custody of the car and the cocaine found in the car was within his immediate control even though ownership of the vehicle was not proven See also Major 03 3522 at p 8 888 So at 80203 2d As driver of the vehicle defendant had complete and authorized access to the glove compartment where the torque wrench was found and to the areas where the cocaine was found Furthermore the location of the cocaine was within the reach of and immediately accessible to defendant as the driver and as the sole occupant of the cab sleeper Those facts alone are sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant exercised ample control and dominion over the cocaine to 13 constitute the required element of constructive possession See Major 2003 3522 at p 8 888 So at 803 2d Guilty knowledge is an essential element of the crime of possession of cocaine However since knowledge is a state of mind it need not be proven as fact but rather may be inferred from the circumstances Major 033522 at pp 89 888 So at 803 Defendant argues in his pro se brief that the 2d state did not prove he had knowledge of the cocaine in the cab of the truck because his fingerprints or palm prints were not found on the packages of cocaine Further defendant argues that his guilty knowledge was not proven because the state failed to establish that the backpack and the cell phone box inside the backpack belonged to him At trial Officer Cowart testified that defendant level of nervousness s increased as he spoke to Corporal Hart Officer Cowart also testified that Brownsville Texas defendant point of origin in his truck route was a s known source area for narcotics trafficking Officer Cowart computer s check revealed that defendant had a prior drug conviction Also as we have previously noted while some of the cocaine was hidden behind the sleeper upholstery to which only a torque wrench would allow access 22 kilos of the cocaine were found in the unlocked closet right next to the sleeper in close proximity to the driver seat Based on the aforementioned evidence s it was entirely reasonable for the jurors to conclude that defendant had the requisite guilty knowledge of the concealed cocaine behind the sleeper walls and in the sleeper closet See Major 03 3522 at pp 910 888 So at 803 2d We further acknowledge that the sheer volume and value of the cocaine in the truck are indicative of drug dealing and it is therefore reasonable to believe that defendant as driver had knowledge of such activity and was not an innocent third party See Maryland v Pringle 540 14 S U 366 373 124 S 795 801 157 L 769 2003 The quantity Ct 2d Ed of drugs and cash in the car indicated the likelihood of drug dealing an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him See also United States v SerranoLopez 366 F 628 635 8th Cir 2004 The large quantity of 3d drugs involved is evidence of the defendants knowledge Even if the drugs were not owned by the defendants it is unlikely that the owner would place approximately 130 worth of cocaine in the hands of people who do not 000 even know it is there See also Major 03 3522 at p 10 888 So at 803 2d 1 In this case the jury was presented with two theories of who possessed the cocaine found by Officer Cowart the state theory that s defendant knowingly and constructively possessed the cocaine found in the truck he was driving and defendant theory that he had no knowledge of the s cocaine that belonged to someone else When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt State v Moten 510 So 55 61 La App 1 st Cir writ denied 514 So 2d 2d 126 La 1987 The jury verdict reflected its reasonable conclusion that s based upon the evidence viewed in the light most favorable to the prosecution defendant having dominion and control over the area where the cocaine was found constructively and knowingly possessed the cocaine Thus with the evidence establishing s defendant constructive possession of 52 kilos of cocaine and that such possession was knowing or 4 Defendant did not testify and no witnesses for the defense testified Defendant theory s is gleaned from his closing argument and defense counsel cross examination at trial s 15 intentional the state proved the elements of the charged crime The jury heard all of the testimony and viewed all of the evidence presented to it at trial and notwithstanding the lack of fingerprint evidence or proof of ownership of the backpack or cell phone box the jury found defendant guilty 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 determination of the weight s to be given evidence is not subject to appellate review An appellate court will not reweigh the evidence to overturn a factfinder determination of s guilt State v Taylor 97 2261 pp 5 6 La App 1st Cir 9 721 98 25 2d So 929 932 We are constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 993342 p 8 La 10 772 So 78 83 00 17 2d The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient State v Quinn 479 So 592 596 La App 1st Cir 2d 1985 The sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt but rather whether a rational fact finder viewing the evidence as a whole could have found the defendant guilty beyond a reasonable doubt See Mussall 523 So at 131011 Based on the evidence as a whole and 2d viewed in its totality reasonable factfinders could have inferred from the evidence presented at trial that defendant was aware of the concealed cocaine and had constructive possession of it thus rejecting the defense s 16 hypothesis of innocence See Major 033522 at pp 11 12 888 So at 2d 11 After a thorough review of the record we find that the evidence supports the jury unanimous verdict We are convinced that viewing the s evidence in the light most favorable to the state any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that defendant was guilty of possession of 400 grams or more of cocaine See State v Calloway 072306 pp 10 12 La 1 1 So3d 417 423 per curiam 09 21 This pro se assignment of error is without merit SECOND PRO SE ASSIGNMENT OF ERROR In his second pro se assignment of error defendant argues that the trial court erred in denying his motion to suppress Specifically defendant contends that no probable cause existed for the investigatory stop Defendant asserts that there is no evidence in the record to indicate Officer Cowart was justified in stopping him and seizing him He contends that Officer Cowart and the State attempted to justify the stop due to alleged erratic driving by him According to defendant t allegation of he erratic driving was simply a pretext for stopping him because he is Hispanic in appearance and the truck was from Texas Defendant argues that Officer Cowart lacked the necessary probable cause to make the stop because his whole basis for the stop was subjective in nature not objective as required Defendant further asserts that once Officer Cowart stopped and confronted him and found no particularized and objective reason to arouse suspicions Officer Cowart should have terminated the investigatory stop and allowed him to leave 17 When a trial court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion i unless such ruling is not supported by the s e evidence See State v Green 940887 p 11 La 5 655 So 272 95 22 2d 28081 However a trial court legal findings are subject to a de novo s standard of review See State v Hunt 09 1589 p 6 La 12 25 So 09 1 3d 746 751 The Fourth Amendment to the federal constitution and Article I 5 of the Louisiana Constitution protect people against unreasonable searches and seizures However the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La C art 215 as well as by both state and federal jurisprudence P Cr 1 Reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual right to be free from s governmental interference The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been is or is about to be engaged in criminal conduct State v Belton 441 So 1195 1198 La 1983 cert denied 466 2d S U 953 104 S 2158 80 L 543 1984 Ct 2d Ed Officer Cowart testified at the motion to suppress hearing and at trial that he pulled defendant over because defendant driving an eighteen wheeler in the center lane crossed the white dividing line into the right lane several times without signaling Based on defendant failure to remain in s 5 In determining whether the ruling on defendant motion to suppress was correct we s are not limited to the evidence adduced at the hearing on the motion We may consider all pertinent evidence given at the trial of the case State v Chopin 372 So 1222 2d 1223 n 2 La 1979 18 his proper lane of travel and to signal when he moved into a different lane Officer Cowart had probable cause to believe a traffic violation or violations had occurred Accordingly Officer Cowart had an objectively reasonable basis for stopping defendant vehicle La C art 215 La R 32 s P Cr 1 S 79 and 32 See State v Shapiro 981949 p 9 La App 4th Cir 12 104 99 29 751 So 337 342 2d Officer Cowart had a legitimate reason to stop defendant and any suggestion by defendant as to Officer Cowart real motives for stopping s him is irrelevant The United States Supreme Court in Whren v United States 517 U 806 81213 116 S 1769 1774 135 L 89 1996 S Ct 2d Ed addressed the issue of the subjective intent of law enforcement officers when making a stop or arrest Not only have we never held outside the context of inventory search or administrative inspection that an officer motive s invalidates objectively justifiable behavior under the Fourth Amendment but we have repeatedly held and asserted the contrary In United States v VillamonteMarquez 462 U S 579 584 n 3 103 S 2573 2577 n 3 77 L 22 Ct 2d Ed 1983 we flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification In United States v Robinson 414 U 218 94 S 467 38 S Ct 2d Ed L 427 1973 we held that a trafficviolation arrest of the sort here would not be rendered invalid by the fact that it was a mere pretext for a narcotics search id at 221 n 1 94 And in Scott v United States 436 U S 128 138 98 Ct 1717 1723 56 L 168 1978 we S 2d Ed Ct S at 470 n 1 does not make otherwise said that s intent alone ubjective lawful conduct illegal or unconstitutional We described Robinson as having established that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer s action does not invalidate the action taken as long as the circumstances viewed objectively justify that action Scott 436 U at 136 138 98 S at 1723 S Ct Subjective intentions play no role in ordinary probablecause Fourth Amendment analysis When Officer Cowart stopped defendant and questioned him about where he was coming from defendant told him he was coming from 19 Brownsville Texas known to Officer Cowart to be a source area for narcotics trafficking When Officer Cowart ran a computer check on defendant Corporal Hart spoke to the defendant Officer Cowart testified that as defendant spoke to Corporal Hart defendant nervousness increased s which raised Officer Cowart suspicion Officer Cowart computer check s s revealed that defendant had an extensive criminal history including a history of narcotics trafficking At that point Officer Cowart requested and obtained defendant oral consent to search the truck s Given the lawfulness of the initial stop the reasonableness of the escalating encounter between defendant and Officer Cowart hinged on whether the actions undertaken by Officer Cowart following the stop were reasonably responsive to the circumstances justifying the stop in the first place as augmented by information obtained by Officer Cowart during the stop Defendant responses nervous demeanor and prior criminal record s prompted a shift in Officer Cowart focus that was neither unusual nor s impermissible Officer Cowart obtained oral consent from defendant to search the truck and within moments officers conducted the search while defendant stood near Officer Cowart patrol unit s The time between s defendant being stopped and his consent to search the vehicle was about seven minutes The time between the consent to search and the discovery of the cocaine was about three minutes Thus the entire span of time from the moment the defendant was pulled over until the cocaine was found was about ten minutes The officers diligently pursued their investigation and the relatively brief duration of the traffic stop and consensual search was reasonable under the Fourth Amendment See State v Miller 00 1657 pp 25 La 10 798 So 947 94951 per curiam Accordingly we 01 26 2d find no merit to defendant argument that he was unlawfully detained s 20 Regarding the search of the truck Officer Cowart did not need probable cause for the search as defendant gave Officer Cowart oral consent to search the vehicle A search that is conducted pursuant to consent is one of the specifically established exceptions to the requirements of both a warrant and probable cause The validity of such consent is dependent upon it having been given voluntarily free of duress or coercion either express or implied See State v Montgomery 432 So 340 343 La App 1st Cir 2d 1983 See also State v Tennant 352 So 629 633 La 1977 cert 2d denied 435 U 945 98 S 1529 55 L 543 1978 Oral consent S Ct 2d Ed to a search is valid State v Ossey 446 So 280 287 n La cert 2d 6 denied 469 U 916 105 S 293 83 L 228 1984 Our review of S Ct 2d Ed the recording of the traffic stop indicates that defendant consent was s neither forced nor coerced and was clearly given voluntarily Accordingly s defendant voluntary consent rendered the search and seizure of the cocaine constitutionally valid Montgomery 432 So at 343 2d We find no legal error or abuse of discretion in the trial court denial s of the defendant motion to suppress Accordingly defendant second pro s s se assignment of error is without merit THIRD PRO SE ASSIGNMENT OF ERROR In his third pro se assignment of error defendant argues that the trial court erred in denying his motion for a new trial Specifically defendant contends that the admission at trial of other crimes evidence violated his Sixth Amendment rights and that it was legal error for the trial court to deny his motion to suppress Both of these issues have already been addressed and found to be meritless in our determination of the counseled assignment of error and the second pro se assignment of error respectively Defendant also asserts that 21 his trial counsel was woefully ineffective and inadequate According to defendant he has been forced to preserve all of his own rights We have been unable to locate a written motion for a new trial in the record At a hearing just prior to sentencing however the trial court denied s defendant presumably pro se motion for a new trial which essentially argued appointed counsel was ineffective The trial court pointed out that a motion for new trial was not the proper vehicle to allege ineffective assistance of counsel and that such a claim was more properly made on appeal or by post conviction relief We agree with the trial court observation s A claim of ineffective assistance of counsel is more properly raised by an application for post conviction relief in the district court where a full evidentiary hearing may be conducted However where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal it may be addressed in the interest of judicial economy State v Carter 960337 p 10 La App 1st Cir 11 684 96 8 2d So 432 438 The allegation of ineffective assistance of counsel raised in s defendant brief cannot be sufficiently investigated from an inspection of the record alone Other than his assertion that he was forced to preserve all of his own rights defendant provides no support in his brief as to how his s counsel performance at trial was insufficient Decisions relating to investigation preparation and strategy cannot possibly be reviewed on appeal Only in an evidentiary hearing in the district court where the defendant could present evidence beyond what is contained in the instant 22 record could this allegation be sufficiently investigated Accordingly this allegation is not subject to appellate review See State v Albert 961991 p 11 La App 1st Cir 6 697 So 1355 1363 64 97 20 2d Notwithstanding the claim of ineffective assistance of counsel s defendant third pro se assignment of error is without merit FOURTH PRO SE ASSIGNMENT OF ERROR In his fourth pro se assignment of error defendant argues that his sentence is excessive Specifically defendant contends that because he has never been convicted of a crime of violence the maximum sentence of 30 years is grossly out of proportion to the severity of the crime Defendant also contends that the 250 fine is excessive 00 000 The Eighth Amendment to the United States Constitution and Article I 20 of the Louisiana Constitution prohibit the imposition of excessive punishment Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 762 767 La 1979 A sentence is 2d considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks the sense ofjustice State v Andrews 940842 pp 8 9 La App 1st Cir 5 655 So 448 454 95 2d The trial court has great discretion in imposing a sentence within the statutory limits and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion See State v Holts 525 So 2d 1241 1245 La App 1st Cir 1988 Louisiana Code of Criminal Procedure Defendant would have to satisfy the requirements of La C art 924 et seq in P Cr order to receive such a hearing 23 article 894 sets forth the factors for the trial court to consider when 1 imposing sentence While the entire checklist of La C art 894 need P Cr 1 not be recited the record must reflect the trial court adequately considered the article criteria s State v Brown 02 2231 p 4 La App 1st Cir 03 9 5 849 So 566 569 2d The articulation of the factual basis for a sentence is the goal of La P Cr C art 894 not rigid or mechanical compliance with its provisions 1 Where the record clearly shows an adequate factual basis for the sentence imposed remand is unnecessary even where there has not been full compliance with La C art 894 State v Lanclos 419 So 475 P Cr 1 2d 478 La 1982 The trial judge should review the defendant personal s history his prior criminal record the seriousness of the offense the likelihood that he will commit another crime and his potential for rehabilitation through correctional services other than confinement See State v Jones 398 So 1049 1051 52 La 1981 2d In this matter defendant was sentenced to the maximum sentence of 30 years at hard labor for the possession of 400 grams or more of cocaine conviction As a general rule maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses State v James 022079 p 17 La App 1st Cir 5 849 So 574 586 03 9 2d Also maximum sentences permitted under a statute may be imposed when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality See State v Hilton 991239 p 16 La App 1st Cir 00 31 3 764 So 1027 1037 writ denied 000958 La 3 786 2d 01 9 2d So 113 At sentencing the trial court stated in pertinent part 24 All right Mr Cisnero is s appears to be 36 years old He is classified and in the probation report as a third convicted felon It was very clear to this court this defendant without question was track trafficking huge amounts of cocaine The court after reviewing his record and information provided by the District Attorney Office s indicating that Mr Cisnero has been convicted previously of s a burglary charge which is a felony a separate charge of unauthorized use of a motor vehicle which is a felony and possession of marijuana in excess of a certain amount which is a felony as well the court concludes that this defendant is in fact a third this would be his fourth felony conviction The court considering the sentencing guidelines as outlined in Article 894 of the Code of Criminal Procedure does not believe even if allowed probation would be appropriate in this case The court finds that there is an undue risk that during a period of probation or suspension of sentence that this defendant would commit more crimes and that the defendant is need in need of correctional treatment or a custodial environment that can be provided most efficiently by his commitment to an institution and that a lesser sentence would deprecate the seriousness of the defendant crime s The trial court adequately considered the factors set forth in P Cr C La art 894 1 Considering the trial court careful review of the s circumstances and the nature of the crime we find no abuse of discretion by the trial court The trial court provided justification in imposing the maximum sentence on defendant who in trafficking huge amounts of cocaine brazenly disregarded the laws of our state We find this to be the worst type of offense in the category of possession of cocaine and defendant with his repeated criminal behavior to be the worst type of offender Defendant was involved in the transportation across states lines of over 100 pounds of cocaine almost 150 times the weight of 400 grams specified in the statute worth over 1 if illegally sold We thus conclude 00 000 000 that defendant poses an unusual risk to the public safety See State v Mickey 604 So 675 679 La App 1 st Cir 1992 writ denied 610 So 2d 2d 795 La 1993 See also Hilton 991239 at p 16 764 So at 1037 State 2d 25 v Herrin 562 So 1 11 La App 1st Cir writ denied 565 So 942 2d 2d La 1990 Accordingly the sentence imposed including the minimum 00 000 250 fine is not grossly disproportionate to the severity of the offense and therefore is not unconstitutionally excessive s Defendant final pro se assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED 7 For a conviction under La R 40 the range of the mandatory fine is S 967 c 1 F 00 000 250 to 600 00 000 M
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