State Of Louisiana VS Ricky Lionel Laurant

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I SIG iV DL EI FO11 PUBLICA 1 A ION I I STI OF LOU SIANA COP APYEAL COUK F I RST C 1 RCU 2012 KA 1705 S C OF LOUISInNA f i VEftSUS 1 2 I E 1 IONI LAUKAN Y I C i Judgixient Rendered APR 2 6 2D13 D AL1 PPi FROM T TWEiN7 JUDICIAL DISTR COUR HL Y SLCOND CT T iN AND I TAMMANY SHOF S AIt 1 THi OR I f1TI S7 OF L OLi1S1ANA TNUMI OCKI 1 3FR 517140 DiV H SlON HYEN LLISON 1 E HQNORi1L3f LA JUDGE 0 cP Reecf Wal Attorneys for Plaintiff icl Disll ntlorney State of Louisiana l An ryn Katl W Landry l3aioi2 Itougu f uuisiana Mnty L Roper 1 13ato Rouge Louisiana It O1 1 IIN I3N KU AtYorney for Defendanl Appellanti Rickey Lionel Laurant 1CREW T PI AND McDONALD JJ McDONALll J he 7 defendant Rickey Lionel L was charged by bill of information aurant with two counts of distribution of cocaine counts 1 and 3 and one c oP unt ted attem distribution of cocaine count 2 violations of La RS 14 La R 27 S 1 A 967 40 and I R 40 He pled not guilty ancl following a jury a S 979 A trial was found guilty as charged on all counts The defendant filed a motion for dict postve judgmerit oC acquittal vhich was denied The State tiled a habitual offender bill of inior A hearing was held on the matter and the defendant wa adjudicaled a second habitual offender For the distribution of cocaine felony convictiion count 1 the defendant was sentenced to fifteen years imprisonment at hard labor witli the first two years of the sentencc to be served without benefit of probation parole or suspension of sentence For the attempted distribution of cocaine conviction count 2 the defendant was sentenced to ten years nenl imprition at hard labor witli tl first two years to be served without the benefit e of probation parole or uspension of sentence For the other distribution of cocaine co count 3 the defendani based on his adjudication as a second viction felozly habitual offender received an enhanced sentence of thirty years imprisoninent at hard labor without benefit of probation or suspension of sentence and vith the first two years of the sentencc to be served without benefit of parole The sentences were ordered to run concurrently The deCeudant filed a motion to reconsider sentences which was denied The defendanl now appeals designating four assignments of error We aftiriri thc convictions habilua offender adjudication and sentences ACrs Detective Bilt Jolinson of the St 7Parish Sheriff Office Narcotics ammany s Ttie trial court later amendcd lhe sentence to eliminate the roquu that the first two years emenl bc served witl benefit of parole probation out or lsion susp uf sentence ivision L receiveci iuforinatiou from a conficlential informant tl an individual aC was elcali craclr cocain in the Covinbton Spi area in St Tammany g Abita ings Parisl Detective Johnsou designated lle Julie Boynton with the St ective ammany l Parish Sheriff Qftice to p as an undercover drug buyer On March s se 22 2011 a meeting was arranged by the c informant and Detective ntidential oynton t k m ihe delendant at a house and purchased 100 worth of crack cocaine about six rocks from him IBoynton exchanged phone numbers with the etcctivc defendant Subsequently Detective Boynton and the defendant spoke severa times on thcir cell phones to set up another purchase On March 28 2011 Detective 13oyi1ton inet the detendant in a McDonald sparking lot on La U Highway 190 S When tlle defetidant got into the detective scar she gave him 100 in exchange for crack cocaine However the defendant got out of her car after taking the money and never returned with the drugs On April 6 2011 Detective Boynton inet the defendant oz right off of bia Colun Street in Covii The defendant got into her car and she purchased gton 100 wortli of crack cocaine 1 him rom e Sl then drove for a while before the defendaiit lold lier to let him out Che clefendant did not teslify at tiial tSOT ERROR NOS 1 and 2 N ASSIGNMF In two related assignmcilts of error the defendant aeg that Louisiana ics istitation Co Article I A 17 which allows for non jury verdicts unanimous violates his right to a jury trial and his rigl t equal protection of the laws t guaranteed by lhe Sixth and F Amendments of the United States ntl ourte Constitution Speciiically the defendant argues that the enactmeilt of its soutce Ne uote that Boynton name is spellcd Boyton throughtout the transcript but the State s s biief ref ta her as I3uvnfon rs 3 provision in the Louisiana Constitution of 1 was motivated by an express and 98 overt desire to discriminate against blacks on account of race It is well that a constitutional challenge inay not be considered by ai1 settled appeliate couit unless it was properly pleaded and raised in the trial co below A nt party must iaise the unconstituLioilality in U tria court the unconstitutionality must e be specially pleaded and the grounds outlining lhe basis of unconstitutionality must bc particulatizeci Set State v Hatton 2007 La 7 985 So 709 718 2377 08 1 2d 19 In the ii case the defendant failed to raise his challenge Yo Louisiana stant Constitution Article 1 A 17 in the trial court The failure to preserve the issue notwithstanding we addres the defendant argument s he plicable la conviction in the instant matter is attentpted distribution of cocaine wherein eleven of twelve jurors found the defendant guilty Che ent hu r urii f led ution I attern dislrit of cocaine is impi at hard labor isonment See La R S T S 967 3 D 1427 La R 40 La R 40 Article b 4 B S 979 A A U and Lotaisiai Code of Cri Yrocedure articte 782 provide that a ninal A iu cascs 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 critninal conviction by a less than unanimous jury does not violate t right to trial by jury specified by the Sixth ie ment menc and made applicablc to the states by the Pourteenth Amendmetlt See Apociaca v Oregon 406 U 404 92 S 1628 32 L l84 1972 State v S Ct 2d Ed rd elga 410 So 720 726 La 1982 State v Shauks 97 La Ap 2d 7 1885 tst Cir 6 715 So 157 164 98 29 2d 65 This court and the Louisiana Supreme Coart have previously rejected the ent argun raised iri the defendanl assignmeilts o1 error See State v Bertrand s 2215 2008 La 3 fi So 738 742 State v Smith 2006 La 09 17 3d 43 0820 4 p A 1 st Cir 12 952 So i 16 writ denied 2007 La 9 964 06 28 2d 0211 07 28 2d 52 5o 3 Tn Bertrand the Louisiana Supretnc Court specifically found that a uzaaniinous pei non twelve jury verdict is constitutional and fut that Article son ther 782 does not violate U F Sixth and Fourtee Amei Moreover the e ii th ith dments and I3ert court rejected the argument that non jury verdicts have an unauimous insidious raciai componeut and poinied out that a majority of tlle United States Suprcme Court also rejected that ar in Apodaca Altliough Apodaca was ament a plurality rather tl a niajority decision xhe United States Supreme C has an ourt cited or ciiscussed the opinion various tinies since its issuance making it apparent that its holding as to non jury verdicts represcnts well law unanimous settled d trai FSe 6 So3d ak 43 42 Thus Louisiana Constitution article A 17 and iisiana oCode of Criminal Proceclure articic 782 are not uriconstitutional and l A therefore their imposition is not in violarion of the defendant federal s constitulional rights Accordingly tl assigrunents of error are wifhout merit ese NT ASSIGNMI OF RROR NO 3 ln his third nssibnment oferi the defendant argues tlle evidetice was insufficieilt to support the coilviction for attempted disteibution of cocaine Specilieally the defenciant eontends that sinee he only took Detective Boynton s tey mo but uever returned with drugs his actions amounted to only a misdemeanor theft Ilac defcnd c not challenge his ot two convictious for distribution nt oes ier of cocaine A convictiori based on insufticient evidence cannot stand as it violates Due 3 In Liertrand the court only considered Article 782 while the defcndant ir the instant case s ttacl Article I A 17 itself We find this approach to be a distinction wiChout a difYerencc iusc bec Article 782 closely tracks llie language of Arlic7e I l A ea Apod as in flic instant inatter involved a challenge to the non jury verdict unanimous provision of hcgon sstaYe constitution Johnson v Loaisiana 406 U 356 92 S 1620 32 S Ct 2d Ld L l52 7 972 decided wit1 Apodaca also upheld Louisiana then constitutional s existing anci sTatutory provi5ions allowing r threejury to ine verdicts Process a Const See U Consf ameiid IV i S art 1 2 The standard of review for the sufficiency ofthe evidence to uphold a conviction is whether or not ving vie the evidencc in the light most favorable to the prosecution any rational triec of fact could have found t essetitial elements of the crime beyond a e able reasot doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 S CC 61 L 560 19 See La Cocle Crim P art 821 State v Ordodi 2006 2d d 9 B 07 Q i11 946 So 6 660 State v Mussall 5 So 1305 1308 06 22 d4 3 2d 09 La 1984 The Jarksor standard of review incorporated in Article 821 is an jective ot standard for testirig lie overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La R 15 S 438 provides that the fact must be satisfied that the overall evidence excludes inder every reasonable hypothesis of innocence See State v Patorno 2001 La 2585 p A 1 st Cir 6 0 22 So 14 I 144 21 2d A defendant is iilty of the crime of distribution of cocaine if he l nowingly or inkentionally disn cocaine La R 40 Only gcneral criminal S 967 1 A intent i requit Such intent is established by mere proof of voluntary ion distribu State v Chat 599 So 335 345 La App 1 st Cir 1992 an t 2d Distribute means to deliver a conh dangerous substance whether by olled physical delivery administering subterfuge furnishing a prescription or by filling ging pack labelinb or compounding the substancc pursuaut to the lawful order of a practitioner La R S I4 961 40 Pursuarit to La R 14 an attempt is S 27 defined in pertinent pai follo tas s A Any person who having a specitic intent to commit a crime does or omits an act ithe of and tendiug directly the or purpose toward nplishiug acco of his object is guilly of an attiempt to commit the vffense intenc and it hall be immaterial whether uncler the ed circuinstanc he would have actually accomplished his purpose B 1 Mei preparation to commit a crime shall not be sufficient to e constitute an attempt 6 Specitic ct iT is that statc of mind irninal Ycnt hich exists when the es ic asta ui circ iudicate th th offei activc desired the prescribcd eriminal t r dc ly sto follow his act or failtrre to acf oilseyaenc La R 14 Although S 10 1 ecitic s inlent may be proveC by direct evidence such as statements by the defendank it need not be proven as a fact but may be inferred fi the circuinstances of the tearisactioti and the actious of the defendant See State v Craham 420 So 1126 1127 La 19 State v I3icks 554 So 1298 1302 2d 2 2d L App lst Cir 1989 writ denied 559 So 1374 La 1990 and writ denied 2d 4 2d 60 So 1297 La 1992 Such state o mind can be formed in an instant State f v Cousan 9 La 1 I 2503 96 25 684 So 382 390 The eYistence f specific 2d iutent is an ultimaie legal conclusion to be resolved by the trier of fact State v McCue 484 2d So 9 8 892 La App lst Cir 1986 Thus to be founc guilty of attempted distribution of cocaine a defendant mtist liave a specific iutent to distribute cocaine and do or omit an act for the puiposc of and teuding direct toward the accomplishing of his object Chatman y 599 So at 346 2d The defendant argues in his brief that tl was no evidence that he intended ere to or tried to obtai and delivzr cocaine to Detective Boynton According to the i detendant since he took the 100 froni the detective left and never returned with any dri lus actions amounted to misdemeatior theft not attempted distribution gs of cocaine According to Detective Boynton testimony s she and the defendant exchanged phone lurnbers at the lust drug buy Before meeting at the MeDonald s parking lol for the second drug buy the detective and the defendant spoke Yhree separate times on the phone about when and where to meet to conduct another drug 7 tG II three calls were played for the jury On the first call the defendant wantcd to me Dctcctive 13oynton in a high area in Abita Springs She told et crime the dcfenda she was uncomfortable with goirlg to an area by herself she was not it familiar with The defendant told the deteetive d she was his clientefe she at was liow he made tnoney and that he would kill to protect her and his interesis On tlie thir cal1 the detective asked tlle defendant if he would have the drugs on d him vahen they met lhe defendant told her he would not I explained he needed Ie tc g the money f to get tl dcugs When she inquired about how long it would t irst e take him to g et the drugs he re that it would not take more tllan fifteen lied 71111LI l S When they met at the McDonald parking lot the defendant got into the s s detective car and she gave him lC1Q for crack cocaine The defendant appeared to become suspicio about Delective Boynton not having house keys on t key i le ring for her ignition key Ihe detective said the ring was loose and tllat the keys would fatl off Thcy spoke a more before the defendant got out of the car with it e tl 1 UO and left Detective Boynton waited for about thirty minutes for the defenciant to return with the drL He never returned While waiCing she called gs the defendant on his cell phoile four limes but each time got his voice mail When a ase c involves tial circwnstai evidence and the trier of fact easonably rejects the hypothesis of innocence presented by the defense that i ypothesis falls ancl the defendaut is guilty unless there is anothei hypothesis l l whicl raises a reasoiiable do State v Moten 510 So 55 61 La App lst ibt 2d Cir idei 514 So 126 La 1987 rit icd 2d rcasonable conclusion that The jury verdict r s effected the based on the physical evidence at Uetective d s tin7oriy Boynton te the deCendau met tvith the detective for the sole putpose of selliug lcrack cocaine In t d4fendanl lg acts tending directly toward the er le sdoi 8 accoinplishing of his object the distributioi af cocaine clearly established all of the eleinenis of ution attempted distrii of cocaine he T defendant spoke with Dctective Boynton on thrcc separate occasions to set up the second drug buy he oiet l the agreed iocaiion and he Cook her money which she gave him to er at upori buy tlie As sUCh upon eed a i ck a o cocxine lere t was overwhelming circumstantial evidence of the defendaut specifie inlent to distribute cocaine See s Chatanan 599 So at 346 See also Ordodi R46 Sv at 655 in which the 2d 2d 64 s defendant convictions f two co of atteinpted armed robbery weee confirmed or ants where the defendant wearing a cap anc sunglasses walked into two banks with a gun in his pocket and a bag but never cemoved the gun or made any demand for inoney before walking back out of the banks In tinding the defer guilty lhe jury cleai rejected the defense theory danl ly s of inuocence I he jury heard lhe testimony and viewed the evidence presented to it at trial and found the defendant guilty as charged The defendant did not testify and presented rlo rebuttal testimony See Moten 510 So at bl 2d b2 In the absencc of int coilh or irreconcilable conflict vith the physical enlal adiction nee evid one uitness testimony if be by the trier of fact is suiTicient to s ieved suppoit a factual conctusion State v Higgins 20o3 La 4 898 So 1980 OS 1 2d 1219 1226 cert 9enied 546 U 883 126 S 182 163 L 187 2005 S Ct 2d Ed Moreovcr the trier of fact is il lo accept or rejecf in wh or in part the ee le tcstiinony of any witness The trier fact determinatiou of the weight to be of s iven e is not subject to appellate t An appellate court will not iderice eview lithc ewci i evidence to overturn a factfinder determination of guilt s aylor 1 2261 97 La 1pp lst Cir 98 25 9 721 2d So 929 932 State v We are constitutionally precl frorri acting as a juror in assessing what ided thirteenth weight to give evidence in criminat cases See State v Mitchell 99 La 3342 9 1 t 17 i012 fi 74 s3 d Attca a ttzorough revicw of the record wc tind thak the evidence supports the s jury verdict Rre are convinced that viewii7g thc evidence in the light most e b favor to the State any rational tiier of fact could have found beyond a ible reasoi doubt and lo tl exclusion of the hypotheses of ii e nocence suggested by the defense at trial that the deCeildant was guilty of attempted distribution of c cocaiz See State v C 2007 La 1 1 So 417 418 per alloway 23Q6 09 2l 3d iain cw 171is ass of error is without mei rgnmenr it N Z ASSICN OF ERROR NO In his foui assignmenl of error lhe defendanl argues that his sentences are tll SSIVe tYCE he 1 th Eigl Amendrnent to the United States Constitution and Artide I 20 of the Louisiana Constitution prohibit the imposition of cruel or excessive lt nishme p Although a sente falls within statutory Jimits it may be excessive nce State v Sepulvado 36 So 762 767 La 1979 A sentence is considered 2d utionally consti excessive if it is gr disproportionate to the seriousness of the ssly otietise or is nothi mot than a piarposeless and needless inflictior of pain and lg suCfering A sentence is cor grossly disproporiionate if when the crime and punisfunenY are conside in light of Yhe liarm done to society it shocks the sense ed of justice State v Andrews 94 La Ap lst C 515 655 So 448 0842 ir 95 2d 454 The trial coart l great discretion in i a sentence within the statutory as osii7g u limits and such a sentence wiil not be set aside as cxcessive ui the absence of a manifes abuse of cliscrerion See StaYe v Holts 525 So2d 1241 1245 La App lst C 1988 ouisiana Code of Procedui at 894 sets forth the inal Critr ticle 1 factors or tlie h co to consider wlien imposing sentence While khe entire ial irt IO checklisY of La Code of Crirri P art 894 need not be recited the record must 1 reflect that thc trial court adequately considered the criteria State v Brown 2002 23 La App lst Cir 5 849 So 566 569 03 9 2d Ihe goa of La Co Crim P art 894 is not rigid or mechanical ie 1 ce compliar wit its provisions b a the articulation of lhe factual basis for a it atl ier sentence Vdhere the record clearly shows an adequate faetual basis far the sentcnce in remand is uni even whcre the has not been ful osecl E sary ece rc coinpliance with La Gode Crin P arG 894 State v Lanclos 4l9 So 475 1 2d 478 a 1982 The ir jud should review the defendant al c spersonal history his rioa crin record the seciousness of the offense the likclihood that he will inal commit an cri and his potential far rehabilitation ttn correctional ther ne igh o services other Lhan confinement See State v Jones 398 So 1049 1051 La 2d 52 1981 j On appellate review of a se the re question is whether the trial itence evant t coui avused its broad sentencing discretion not whether another sentence might have bccn more appropriate State Thomas 98 La 10 719 So 1144 98 9 2d 49 50 ec curiam Iu the instant matter lhe deFendant faced a maxitnum sentence of thirty years al tiard labor on count 1 and was sentenced to fifteen years at hard labor See La R 40 On count 2 he faced a maximum sentence of fifteen S 967 b 3 years at 11ard labor and was senteticed to ten yca at hard labor S 979 4 k3 i7 1 40 L R 40 A Sce La R La RS 427 On count 3 as a 3 D secon felony i otfcnder he faced a maYimwTi enhanced sentence of sixty bitual veats t hard labor aud was ea to thiity years at hard labor tenced b 4 B 967 40 See La R S La R 15j The defendant arglies in his brief that S 529 1 A 1 e tl tdal court did noC orcler a presentence investigation report PSI and that it did not adequately comply wilh L CQde Crim P arl 894 since it did not consider 1 It tkle dctea peesonal history and potcntial fo rehabilitation s dant b u Regard the PSI the defeodaitt made no n in his written motion to iention sider corsantencc of tlle trial courf5 decision I ocder a PS1 I r ot to he defendant s ure tai to include this specitic ground in his motion to reconsider senlence his urging it for the Cirst time ou appeaL See La Code Crim P art B 1 Moreover tl ordering of a PSI lies witl the discreCion of the trial e in court Scc La Codc Criin P art S75 State v Johnson C04 So 685 69f3 1 A d La App lst Cir 1992 writ dcnied b10 So 795 La 1993 2d ling e Rcgar tl applicable factors in sentencing it is clear in its reasons for thc scntence that the tirial court thoroughfy considered La Code Crim P art 894 1 iri arriving at ail appro sentence nfter noting the defendant had a previous riate conviction f unautl e of an inhabited dwelling tlie trial court stated in r orized itry perliuent part one Twenty years of age Defendant is now being sentenced in accorda with the senteiicing provisions of 894 And I will nce 1 enumeratc those sentencing considerations when I concl my ide tJlis in sentencing particular iT atter x x As I indicated earlier in conil vith each of the sentences ction irnposed today the Couit considers the provisions of Code of Crimiilal Procedure 894 I Article Che Court finds the following s I71ere an undue risk that during any suspended se of ltence probation the defeiidant would corrrn crime Idefendant another rt he is in need of cot treatme or a custodial environinent that al ectior t can be provided mosl effectively by is commitment to an institurion Thc offenses iu tlic instant case involved controlled dangerous substances And the evidence presented at tbc tri21 indicated that the offender obtained substaotial income from ongoing drug activities In fact the testunony and the evideilce presented at the trial ref7ected that he was in the business of selling narcotics Hc referced to the officer to which solcl the drugs as J client And he indicated that quote he is You remember how I make my money w uote c So iY was apparent to this Court follo the trial of this case ving lhat rn fact as au aggravating facLor in this particular case lhat this defeizdant o6tained substailtial income from his ongoing drug activities he L Court also finds thaY a lesser sentence would deprecate the seriousness o dePeildant the scrime 12 Gonsidering tl trial court review of the circumstances the nat of the e s ire criines and the fact the defendant overall thirty sentencc was only half of s ycar the axiinutn sentence allowable under the law w find no abuse of discretion by e thc trial court rlcrordiragly lhe sentences imposed by tl trial court are not e y res disproportionate to the severity of tl offenses and th are not e refore ulionaUy sive unconsti eece Tliis assigninent of error is witfiout merit NS UAL CONVTCT 13AI31T OFFENDER ADJUDICATION AND S TIsvCF RMLll N I7 SL AI 13

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