State Of Louisiana VS Terrence Roshun Scott
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 KA 2418 STATE OF LOUISIANA VERSUS TERRENCE ROSHUN SCOTT Judgment Rendered JUN 1 9 2009 APPEALED FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST TAMMANY STATE OF LOUISIANA DOCKET NUMBER 433311 I THE HONORABLE REGINALD T BADEAUX III JUDGE Walter R Reed Attorneys for Appellee District State of Louisiana Attorney Covington Louisiana And Kathryn W Landry Baton Rouge Louisiana Carl A Perkins Attorney for Defendant Appellant Covington Louisiana Terrence Roshun Scott BEFORE PETTIGREW McDONALD HUGHES JJ McDONALD J The defendant Terrence Roshun Scott with with intent possession Count 1 40 967 A I marijuana a a 1 weapons a RS R S For the to be suspended 14 95 E of the two years sentence ordered were to ordered sentence to assignments of reversible error sentences 14 27 at sentenced The to careful we Therefore a reverse R S See La distribute the first cocame two years two years were attempted illegal carrying to five years remaining now Count 2 hard labor with years For the parole suspended violation of La with intent The defendant After error not pled attempted illegal carrying of five years was a be served without benefit of parole concurrently run and remaining three served without benefit of R S possession of The defendant and La R S to of La guilty of the responsive offenses of Count 1 Of the weapons while in distribute cocaine of weapons conviction the defendant with found sentenced was violation a Count 2 attempted possession conviction the defendant ordered to 14 27 violation of La R S sentence was with intent and La 40 979 of the 14 95 E jury trial he attempted possession 40 967 A illegal carrying of bill of information charged by cocaine distribute to violation of La R S Following guilty and was appeals at hard labor three years of this The sentences were designating three consideration of the record the defendant s convictions we find and remand vacate the FACTS On April 25 2007 Sergeant Fred Ohler executed with the assistance of the St warrant at 864 Hailey Peggy Rudolph who in a The house at this address relationship with the defendant during the execution of the search I with the Slidell Police At the time of the defendant s arrest Department Tammany Parish Sheriffs Office A venue in Slidell was I warrant were search belonged to Present at the house Rudolph the defendant Darlene Sergeant Ohler was a detective 2 a Charles and small children two s The defendant Sergeant Ohler found crack cocaine bedroom master Rudolph bedroom and Marijuana cocaine residue on top of the bed blades with phone bill addressed to near Two the defendant razor the 864 at another bedroom officers found crack cocaine and in the closet The total amount amount of marijuana found Probable the execution of the search place on March 13 2007 On the first transaction capacity with transaction Office on April was purchased at 41 21 The total was based to April on he was trial in an to April drug sales prior 25 2007 Detective Ohler he He drove to drug to transactions at was Rudolph Rudolph in s an s house undercover house and the 100 worth of crack cocaine from the defendant trial that he observed the defendant According undercover doorway three undercover officers took to Detective Chauvin capacity during the Tammany Parish Sheriffs on the April 24 with the confidential informant Detective Chauvin observed the confidential informant crack cocaine in the grams The three Detective Daniel Chauvin Jr with the St at In handgun 25 2007 24 2007 and according Ohler testified testified transaction warrant confidential informant a confidential informant Detective warrant April Sprint P 25 semi automatic a allegedly sold crack cocaine wherein the defendant was a 2 27 grams for the search cause suspected crack Avenue address Hailey of crack cocaine found was underneath the bed Also found in the bedroom the bed master the headboard of the bed in the on spring found were found in the 38 revolver in the box a found was was under the carport of purchase Rudolph s house 80 worth of In the final 25 transaction Detective Chauvin did not witness the transaction because the confidential informant cocame Detective went inside the house Chauvin testified to that confidential informant told him that the defendant crack inside the house 3 purchase 60 worth of crack following the transaction was the the person who sold her the Rudolph testified trial that the defendant did at testified she lived for about four months children Charles her twenty year old including friend of a Rudolph the son Hailey James Rudolph testified that the gun found in the box Cannard who her house living was about the cocaine defendant had at purchased Sprint a only at the search her house to the April went there police when he 24 and and her cable April to was 25 He had on on arrested prior or Darlene four to days Jermaine nothing She testified that the live Rudolph at s house He her children when the police arrived with about there being drugs in the He testified he did not make any statement He denied He testified he a Also Rudolph She stated she knew not knowing anything 25 She phone for her but that she paid the bill trial that he did April her house spring belonged March 13 on cell check He denied warrant house when he briefly at at address with her four the other gun found in her house or The defendant testified was live stayed with her for three sister s at not selling any drugs on March 13 helped Rudolph get her Sprint cell phone conviction for possession of marijuana ASSIGNMENT OF ERROR NO 1 In his first allowing assignment of error the defendant evidence of other crimes with no Prieur notice the defendant contends that the remarks made statement about the three argues the trial court erred in or hearing Specifically by the prosecutor during her opening drug sales the defendant allegedly participated in prior the execution of the search warrant constituted impermissible references to to other crimes evidence In her each agent opening taking place These statement on a different the prosecutor commented day involving to obtain search probable at the house where the defendant cause a warrant three the defendant and drug sales by the defendant according as on to an the prosecutor drug sales undercover were Upon execution of the search used warrant allegedly conducted these three drug transactions 4 officers found drugs and defendant in the instant a different pointed mistrial a He prosecutor s opening argued introduced there had been offered or charge the to no prior this trial at statement defense counsel the prosecutor had made references drug sales for which the defendant out the evidence used was prosecution At the conclusion of the moved for which gun was not notice of other crimes evidence although the defendant not was being that the search responded which would be introduced into evidence contained all three warrant He also being prosecuted The prosecutor three to drug sales charged with those drug sales The prosecutor also argued that the prior drug sales constituted res The trial gestae denied the court motion for mistrial During trial there drug the three sales was extensive testimony throughout the trial referencing Early in the trial when Sergeant Ohler testified about his involvement in the first March 13 drug buy defense counsel lodged objection regarding the admissibility of this other crimes evidence Im going to ask the Court scheme the conversation or to note my continuing objection to a continuing Your Honor the transaction testimony about transactions Generally evidence of criminal offenses other than the offense being tried is inadmissible prejudice to committed a as substantive evidence because of the substantial risk of grave the defendant In order to avoid the unfair inference that particular crime simply because he is a an besides v La App 3 9 01 1st Cir 18 2 a 00 criminal State disposition 754 So 2d 1128 1130 5 I independent relevancy Lockett 99 0917 p writ denied 2000 1261 786 So 2d 115 Louisiana Code of Evidence article 404 B defendant person of criminal character other crimes evidence is inadmissible unless it has simply showing a provides 3 La Except acts in Article 412 provided as is admissible not wrongs or order show that he acted in be to admissible for other to prove conformity evidence of other crimes the character of person in therewith It may however such purposes proof as a of motive preparation plan knowledge identity absence of mistake or accident provided that upon request by the accused the prosecution in a criminal case shall provide reasonable notice in intent opportunity 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 advance of trial of the present Prior Third statement v nature proceeding the amendment of La Code Evid Extraordinary before trial the to of the was 19942 Session of required of the other acts to or general exclusionary rule the furnish in pretrial combined Prieur answer to offenses it intends It also to to motions In its by a the defendant offer specifying Act 51 of the reasonable time a particularized the exception to See State admissibility Our review of the record indicates there However for 1 within upon which it relies for their hearing evidence of other offenses 404 B prosecution writing Prieur 277 So 2d 126 130 La 1973 was no art the record indicates the State filed discovery and notice of intent answer the State provided the following regarding its provided intent to to open file a introduce discovery introduce other crimes evidence The State gives written notice of its intent to introduce evidence of other offenses admissible under L C E Article 404 as described in the attached Such evidence is admissible as proof of discovery motive opportunity intent preparation plan knowledge identity absence of mistake or accident or is an integral part of the act or transaction that is the subject of the current proceeding It appears defense counsel introduce other crimes evidence 404 B I the given provided fair notice of the State We also note that under La prosecution shall provide other crimes evidence 2 was s intention Code Evid to art reasonable notice of its intent to introduce that the accused has requested such notice We language added was that upon request by the accused the prosecution in a criminal case provide reasonable notice in advance of trial of the nature of any such evidence it intends The shall to introduce at trial for such purposes Cir 14 2 03 See State v Millien 2002 1006 pp 10 11 845 So 2d 506 514 6 La App 1 st can find in the record nothing indicate that to defense counsel requested Since the State gave defense counsel notice of its intention notice other crimes evidence Having failed to do so it is the defendant they claim cannot burden s to lack of notice a However the issue of Prieur notice of the State evidence is separate and evidence Although such evidence is Addison a independent of the to 551 So 2d 687 692 a La is hearing not Prieur a intent to use hearing other crimes admissibility of the determine the admissibility of See State always required 1st Cir App to introduce now of the question pretrial evidentiary hearing preferable such s request such v 1989 writ denied 573 So 2d Prieur hearing in this 1116 La 1991 Notwithstanding the failure to hold find the other crimes evidence of the three transactions drug wherein the to warrant was executed the prosecutor s argument these criminal To acts do constitute not it police or officers court or not res during to what April crack her cocaine 25 all in 2007 we opening we to The find contrary that statement gestae and declarations must be immediate concomitants of it or form in the res gestae In Louisiana only spontaneous after commission of the crime but also pertaining sold case The three inadmissible Under these facts continuous transaction one doctrine is broad and includes made before 24 and the circumstances necessary incidents of the criminal act conjunction with April form part of the was allegedly 2007 the trial gestae res 25 April to drug sales defendant undercover officers took place March 13 search pretrial a they heard or utterances and declarations testimony of witnesses and observed before during or after commission of the crime if the continuous chain of events is evident under the circumstances Addison 551 So 2d at 690 91 occurred almost one The April 24 drug and a half months prior to transaction occurred the 7 The March 13 drug transaction the execution of the search day before the search warrant warrant was executed the The prosecutor therefore did other crimes charged offenses that it formed continuous transaction crimes necessary incidents were or establish in her not in the State could not have the conjunction with other such extent offenses its without reference case one show the to charged accurately presented that charged offenses the prosecutor failed Additionally statement immediate concomitants of the or related and intertwined with the were opening to an them to See Addison 551 So 2d at 691 92 We find further that the other crimes evidence had besides 1074 simply showing La 1080 criminal a 1981 See State disposition When the defendant no was independent relevancy Lafleur 398 So 2d v arrested upon execution of the search warrant and Detective Ohler asked the defendant if the his the defendant did he was On statement police the not say cross drugs regarding not I didn t make blanket denial of defense that the or or seem was done without knowledge knowledge possessed were not the drugs genuine Frederick 340 So 2d 1353 1355 La 1976 259 263 La how being in possession of drugs act 1979 State Clark 338 So 2d 690 v Ohler that true I that he never never they came amounted or there matters at La 1976 1355 further stated 8 not police officers be in the house nothing more than a a illegality of the substance was no intent issue herein See also State v to distribute See State v Martin 377 So 2d Slayton 338 So 2d 694 695 98 La 1976 692 93 s In the absence of to the gun of the to I did told them statements to no told the Considering the defendant substantive gun it would was responded statement or to Detective were The defendant testified that he made to make any s case that while he may have them intent a possessed the drugs the theory of the defendant or this his the defendant and his refusal who on only according examination when asked if it were anything guilty pleas He stated reply take the ride to going not drugs found The Frederick Court State v 340 So 2d at Nor did defendant of plea s evidence of extraneous offenses admissible To knowledge extraneous the permit without guilty not more intent to prove indicate that these must guilty or evidence exceptionally permitted offenses the evidence make are of real and independent of the defendant s general claim The mere theory that a of innocence posed by his plea of not guilty plea of not guilty puts everything material at issue is not enough for genuine matters at issue this purpose The prosecution defenses in order to rebut them of evidence Identity pattern or primarily also was system and be used not to help La 15 5 01 prior drug sales if relevant establish was admissible evidence was 2002 to prove highly a for the with which cert in probative as examples provided in the harmless error court truly period of the be ruled other out people drug sales including two are jury s responsive or not 1087 a system would an issue See 122 S Ct 826 April of defense of none which would allow 1 were in that the Further ours prior drug on case primary applicable in this no to establish Jacobs 99 0991 p v issue in the the sales drug case sales into evidence discussed 24 and inculpatory extensively 25 April was statements upon his were living in the house during the time other men that the jury decided the defendant drug offenses in the past See Both of the at La Code Evid art 404 B Since the defendant made and since several other was as found other crimes evidence triggerman Italics These three arrest noted rebutting throughout the trial The audio of the drug buys played for the jury similar denied 534 U S admissibility of other crimes evidence not so See also State fact consequential not as We also find that the admission of the three was fancy damning piece some these issues pattern at 1131 952 was where the supreme misidentification of defendant the other to identity 2d So 803 So 2d 933 151 L Ed 2d 707 outset issue because the defendant did not contest his an even the credit the accused with omitted Lockett 99 0917 at p 5 754 26 at Citations The evidence of the identity cannot Lockett verdicts of the 9 besides the defendant it was a bad man 99 0917 at p 7 cannot who had committed 754 So 2d at 1132 attempted charged offenses seem to suggest the lack of we a conclude that the cannot surely unattributable 2078 2081 sales this to by court Sullivan court for This the State presented by rendered in this trial actually v Accordingly were 113 S Ct Louisiana 508 U S 275 1993 erred in allowing into evidence the defendant Also the doubt Therefore these convictions trial case verdicts guilty error 124 L Ed 2d 182 The trial drug strong evidentiary error was must at trial the not harmless be reversed and the alleged three prior beyond case a reasonable remanded to the trial a new of error has merit assignment ASSIGNMENT OF ERROR NO 2 In his second requiring the State controlled assignment to high probability La we a identity of the confidential informant used in the remaining assignments that the issue raised in this 1st Cir 2 8 08 App erred in not will consider this issue Initially file reveal the court drug buys Having found reversible consideration of all remand of error the defendant argues the motion we note that requesting the a colloquy By and is as prior would pretermit However because there is assignment of error will arise again identity of the confidential informant was following opening defense counsel It appears the the prosecutor statement One other thing going to that Note my objection This is it If she is charges in discovery no officer purchased any confidential informant used who transactions informant integral part informant I am entitled By the Court was to drug I want the that We ll talk about that later 10 drugs the medium If she wants to talk about was an on Griffin 2007 0974 p 21 v s opening The relevant follows Mr Perkins a review of the record indicates the defendant failed to the defense counsel s to normally 114 first time defense counsel raised this issue statement we error See State now 984 So 2d 97 of error sales name Ill get back talk about There to drug was a who made the the confidential of the confidential In his brief the defendant quotes the made by defense the trial following objection during counsel By Mr Perkins Your Honor I m going to ask the Court to note my continuing objection to the transaction scheme the conversation or testimony about transactions By the Cburt So noted We presume the defendant is suggesting in brief that the foregoing objection by defense counsel preserved the issue regarding the identity of the confidential informant However during opening drug statements must state specific error brought to to the it 1st Cir 1993 attention or cure any cannot art 841 A The grounds for objection State on exception even name if the defendant had of a State v Buffington cause drug buys for the search which a properly preserved As a sufficiently make the proper object to to warrant However the was a App used La App charges in this the required in an an illegal 1 st Cir 1984 participated as not appeal However participant source case were evidence seized in the search of the residence where the defendant 11 La the issue for the accused 452 So 2d 1313 subsequently this 103 A art general rule the State is confidential informant were to the 679 So 2d 1372 confidential informant In the instant matter must be See La Code Evid is made when the confidential informant drug transaction controlled opportunity out pointing LeBlanc 618 So 2d 949 958 59 v would find the contention baseless divulge the appeal about required to was Because the defendant failed to urged court It is well settled that defense when it is made allow it the to error be now objection an the trial to conversation issue of whether the State writ denied 95 2216 La 10 4 96 Moreover to court s court La Code Crim P we the trial and prevent issue at trial the basis for comment to subsequent objection identity of the confidential informant counsel ruling the nor properly preserved the transactions reveal the find neither defense counsel s we in the three of probable based was on found the not on any evidence seized from the controlled between the confidential drug buys informant and the defendant The confidential informant did in the transaction played State Clark 2005 61 v 1015 16 v pp 7 8 that led to part in the execution of the search no See State 1007 the search ie 10 13 95 App 2d So 566 4th Cir 4 26 95 La La 567 68 App 5th Cir 06 17 3 La 1978 because she subsequent search 909 So 2d 6 28 05 925 So 2d 538 State See also Jackson v 94 1500 654 So 2d 819 823 writ denied 95 1281 of the confidential informant name arrest s and the Accordingly the State would 661 So 2d 495 divulge the 13 14 writ denied 2005 2119 Diliberto 362 La pp the defendant warrant playa crucial role not have been not This La required assignment of error to is without merit ASSIGNMENT OF ERROR NO 3 In his third denying court assignment of error the defendant his motion for should have the defendant arrested for mistrial a Specifically granted his motion for on cross possession a the defendant contends the trial mistrial because in her examination the prosecutor of a and handgun argues the trial court erred in the defendant suggested marijuana but questioning of only was convicted for the possession of marijuana The exchange at Issue occurred during the cross examination of the defendant Q Why didn t you point things them to I just came in and got Didn t you understand what I was violated I never went through police procedures like I went through A just then I business and I Q When you was sitting there eating my chips and minding my hit in my jaw like with cuffs got got caught with the gun and the marijuana that you pled to the Mr Ms Mr marijuana you never had Perkins Objection Your Honor not at that time Knight prosecutor Perkins Your Honor Ms Knight s questions when he got stopped with a gun and the marijuana before then objection He s admitted that he pled guilty to it 12 that s my main The Court What is the objection Mr Perkins My objection is that The Court Objection overruled cross SO you said you ve You were arrested with A when police I irrelevant and it s s prejudicial examination continued Q case it was Yes Q That s marijuana Mr Perkins a been involved with and gun involved were arrested never ma am we are drugs and police procedure marijuana before this correct I arrested was talking I will make another Your Honor objection for the record that you pled to Q A Yes yes ma am Mr Perkins there Ms are no that it s inadmissible prior up arrests where Im doing that to Knight It s Ms prejudicial Your Honor Impeach Mr Scott s statement Knight through police procedure that he hadn t been before Like that before Defendant Objection sustained The jury will disregard that question The Court answer the conclusion of all Following the bring convictions Mr Perkins and to testimony and prior to closing arguments following exchange took place Mr Perkins First of all I would like to move the Court for mistrial a questions asked by the prosecutor relating to the prior arrest for which he had not been convicted the gun charge that she put before the jury I believe Ms Knight Your Honor my response would be based on defendant that he didn t answer the He said the door was opened by based on the he didn t give them any information because he s never been involved in a police situation and that s I asked him sic if he had had a prior experience with police situations And that s why I asked him police was talking about She specifically that the arrest he Mr Perkins was that he Ms Knight And then I pointed out that it already pointed out It wasn t something else The Court First of all admonished the jury think it to was was the I need to say I sustained the disregard the question and the marijuana he I objection answer I don t proper to ask him about arrests with no conviction and I sufficient Motion for Mistrial is denied was think that s Louisiana Code of Criminal Procedure article 770 Upon motion of a defendant remark involved in or comment district attorney refers directly or a made within the or a court indirectly official to 13 provides in pertinent part mistrial shall be ordered when a hearing of the jury by the judge during the trial or in argument 2 Another committed by the crime defendant committed as An admonition to the shall not be sufficient requests that only the jury to to to jury prevent which evidence is to disregard the remark disregard been admissible not the remark or comment mistrial Ifthe defendant however a admonition be an have to alleged or given the but shall comment or shall admonish court not declare a mistrial La Code Evid 1 609 art conviction of crime in criminal A entitled provides cases General criminal rule In in pertinent part criminal a every witness case testifying subjects himself to examination relative convictions subject to limitations set forth below Convictions B no an arrest inquiry the prosecution conviction for issuance or an to La charge arrest of The prosecutor the to an was a suggested indictment a at as to the examination was carrying a gun charge opened was prevIOUS the defendant Accordingly permitted to question However or or whether it case a gun arrest the door for arrested with during a was a gun drug charge subsequently was improper trial that the defendant denied such a the defendant either had In either gun police procedure including when he according an of marijuana conviction ostensible gun argued cross the prosecutor 3 carrying through police procedure and Therefore warrant possession of marijuana charge the prosecutor while the defendant dropped the reference to prior possession arrested for On marijuana art 609 1 B Code Evid questioning or was arrest an the defendant testified that he had of pled guilty the defendant about his this line of offenses for which the witness acquittal possession admitted that he his criminal are direct examination On pursuant Generally only to by admissible upon the issue of his credibility is permitted into matters for which there has only been has been convicted and evidence of Attacking credibility by having ever been questioning about such gun and marijuana a prosecutor she questioned the defendant about the 3 Initially the prosecutor asked When you got caught with the gun and the marijuana that you Later the prosecutor asked So you said you ve never pled to the marijuana you never had You were arrested with a gun and drugs and marijuana been involved with police procedure before this case when police were involved correct 14 arrest to impeach his that he hadn t been statement through police procedure before The application of La Code Evid art 609 1 is limited to evidence of convictions in connection with State v Powell 28 788 p 9 La prior arrests or defendant did not opened testify I rather he testified 694 So 2d 243 procedures like minding minutes when the thought he was came was police came swallowing 1 609 B before gone never I in and got violated explained in I was jaw 1286 extend not Moreover we do never sitting there been only The went through police eating my at chips and Prior these to the house for him and hit him in the jaw because He felt violated and not through police procedure like with cuffs that he had grabbed crack 683 So 2d 1281 See being impeached by the prosecutor to and I got hit in my the defendant statements the door through just then I went my business Such evidence does that he had just witness a 1 11 96 See La Code Evid art charges find the defendant credibility of App 2d Cir writ denied 97 0092 La 5 30 97 to of the impeachment prior was very ten they upset over how he treated From a comparing his arrest plain reading of the record it most recent arrest procedure wherein he procedure clear the defendant for the present treated not was seems so charges with poorly Accordingly prosecutor s contention that she questioned the defendant about impeach his statement that he had been not some a prior through police procedure was past the arrest to before is ultimately unpersuasive When the defendant or charge involving the jury to a gun objected the trial at trial disregard the remark or comment shall the prosecutor s reference sustained the court disregard that question and to answer not 15 to an objection and admonished An admonition to the be sufficient arrest to prevent a jury to mistrial La Code Crim P is The issue of a mistrial is art 770 being reversed and it serves no CONVICTIONS purpose to REVERSED moot however 16 the conviction consider this matter further SENTENCES REMANDED as VACATED AND
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