State Of Louisiana VS Rutherford Jones
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NQT DE5IGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL e2 4 FIRST CIRCUIT 2010 KA 0460 STATE OF LOUISIANA VERSUS RUTHERFORD JONES Judgment Rendered SEP 10 2010 On Appeal from the Sixteenth Judicial District Court In and for the Parish of St Mary State of Louisiana Docket No 2008 178207 Honorable Edward M Leonard Jr Judge Presiding J Phil Haney District Attorney Jeffrey Trosclair Assistant District Attorney Franklin Louisiana PlaintiffAppellee Frank Sloan Counsel for Defendant Appellant Mandeville Louisiana Rutherford Jones State of Louisiana BEFORE WHIPPLE McDONALD AND McCLENDON JJ McCLENDON 7 The defendant Rutherford Jones was charged by bill of information with distribution of cocaine a violation of LSAR 40 The defendant pled S 967 1 A not guilty and following a jury trial was found guilty as charged The State subsequently filed a fourthfelony habitual offender bill of information At the habitual offender hearing the trial court sentenced the defendant to thirty years at hard labor without benefit of parole probation or suspension of sentence for the distribution of cocaine conviction The trial court adjudicated the defendant a third felony habitual offender vacated the thirty sentence and sentenced year the defendant to life imprisonment without benefit of parole probation or suspension of sentence The defendant now appeals designating two assignments of error We affirm the conviction habitual offender adjudication amend the sentence and affirm as amended FACTS Detective Billy Jordan with the St James Parish Sheriffs Office was assisting the St Mary Parish Sheriff Office by working undercover as a drug s user and purchasing illegal narcotics from streetlevel dealers On February 20 2008 Detective Jordan along with a confidential informant CI drove to a washateria near Friendship Alley in the Amelia area in St Mary Parish A pickup truck pulled near them A man who the CI identified as Slim exited the passenger side of the truck and approached Detective Jordan vehicle The man s approached Detective Jordan who was on the driver side s wearing a cap and a camouflage jacket Detective Jordan paid the man one hundred dollars in exchange for five rocks of crack cocaine away and Detective Jordan drove off The man was The man walked A hidden camera in Detective Jordan s vehicle recorded the drug transaction At the habitual offender hearing the State established the defendant had at least four prior felony convictions and was therefore a fourth or subsequent felony habitual offender The prior convictions were for unauthorized entry of an inhabited dwelling two counts of distribution of cocaine three counts of simple burglary and sexual battery The trial court sentenced the defendant to life imprisonment under LSAR 15 as a thirdfelony habitual S 529 ii b A 1 offender However it appears that a life sentence under LSAR 15 as a S 529 ii c A 1 fourth felony habitual offender would also have been proper 2 Several weeks after the drug transaction Lieutenant Billy White and Lieutenant Scott Anslum both with the St Mary Parish Sheriff Office were s patrolling together near Friendship Alley where they saw the defendant walking Lieutenant Anslum called the defendant Slim and told him they needed to talk to him The officers spoke with the defendant who identified himself as Wilbur Jones One of the officers then took a picture of the defendant Subsequent to this incident the officers again came into contact with the defendant near Friendship Alley and took another picture of him The defendant lived on Friendship Alley Lieutenant Anslum assembled a six person photographic array which contained the first picture taken of the defendant by the officers when they were near Friendship Alley On April 9 2008 about seven weeks after the drug transaction Detective Jordan identified the defendant as the person who sold him the crack cocaine Detective Jordan testified at trial and identified the defendant in open court as the person who sold him the cocaine ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues that the evidence was insufficient to support the guilty verdict Specifically the defendant contends that the State failed to prove his identity as the suspect involved in the drug transaction with Detective Jordan A conviction based on insufficient evidence cannot stand as it violates Due Process See U Const amend XIV La Const art I 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 of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 S Ct 2789 61 L 560 1979 2d Ed See also LSAC art 821 State v P Cr B Ordodi 060207 p 10 La 11 946 So 654 660 State v Mussall 06 29 2d 523 So 1305 130809 La 1988 2d The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall 3 evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence LSAR 15 provides that the factfinder must be S 438 satisfied the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 01 2585 pp 45 La App 1 Cir 6 822 So 02 21 2d 141 144 Furthermore when the key issue is the defendant identity as the s perpetrator rather than whether the crime was committed the State is required to negate any reasonable probability of misidentification Positive identification by only one witness is sufficient to support a conviction It is the factfinder who weighs the respective credibilities of the witnesses and this court will generally not secondguess those determinations State v Hughes 050992 pp 5 6 La 11 943 So 1047 1051 06 29 2d The defendant asserts that Detective Jordan identification of him was s unreliable because he has been bald for many years and the cocaine seller had hair on his head his nickname is Shine yet the person who sold the cocaine was referred to as Slim and all his front teeth are missing yet Detective Jordan did not recall that the person who sold him drugs was toothless The testimony at trial established that Detective Jordan conducted a face toface drug transaction in daylight with excellent visibility with a person who Detective Jordan later identified as the defendant About seven weeks after the drug buy Detective Jordan identified the defendant in a six person photographic lineup as the person who sold him crack cocaine According to Detective Jordan and Lieutenant Anslum who assembled the photographic lineup Detective s Jordan identification of the defendant was immediate Detective Jordan also identified the defendant in court as the person who sold him the drugs When asked during direct examination if he was positive that it was the defendant who sold him the cocaine Detective Jordan responded that w a doubt it was ithout the defendant Detective Jordan testified that the defendant stuck in his mind because he had the worst smelling breath he had ever smelled on a human being in his life 0 On cross examination of Detective Jordan defense counsel suggested that the video of the drug transaction showed the seller had hair on his head Detective Jordan responded that the seller was wearing a hat When asked if he could tell from the video if the seller had hair under his ball cap Detective Jordan responded Yes it looks like he does have at least patches of hair On the cross examination of Lieutenant White he was shown the video of the drug buy and asked if the seller had hair on his head Lieutenant White responded Appears to Several pictures of the defendant were introduced into evidence The pictures show the defendant is bald Two of the pictures which were the s State exhibits were taken of the defendant weeks after the drug transaction with Detective Jordan It is not clear when a third picture of the defendant which was a defense exhibit was taken although it appears the defendant was in jail at the time Two witnesses for the defendant testified Oralee Smith the defendant s mother testified that it had been over twenty years since the defendant had hair on his head Betty Pesson who worked for the St Mary Parish Sheriff s Department testified that over the past ten years of seeing the defendant coming into the station and being booked she had never known him to have hair on his head On cross examination Betty testified that the last time she saw the defendant being booked in jail was about ten years ago Our review of the video of the drug transaction revealed nothing about whether or not the seller was bald The transaction was very brief and the seller who was wearing a baseball cap appeared on camera a few times only momentarily There were some views of the side of the seller head as he s turned but because of poor video quality the video does not clearly show whether the seller had hair on the sides of his head On cross examination of Detective Jordan defense counsel asked him if he recognized anything about the defendant mouth Detective Jordan did not s remember anything in particular about his mouth Defense counsel showed him the picture of the defendant smiling and asked Did you notice you notice that 5 Detective Jordan replied that he he doesn have any teeth in his mouth t thought the defendant did not have teeth in the lineup picture either Defense counsel noted that Detective Jordan had not put anything in his notes about the s defendant teeth Detective Jordan testified that the drug transaction took about twenty seconds On redirect examination Detective Jordan testified that during the drug transaction the defendant was not smiling showing his teeth but was kind of nervous and trying to be as quick as possible The CI and Lieutenant Anslum referred to the defendant as Slim Oralee Smith testified the defendant nickname was Shine and that everyone called s him that all his life She stated that everyone in Amelia knew him as Shine and that he had never been called Slim She further testified that letters she wrote to the defendant while he was in jail were addressed Hey Shine The foregoing characteristics of the defendant were factual determinations based on witness credibility and the weighing of the evidence We do not find irrational the jury credibility calls and evidence weighing in s regard to Detective Jordan testimony and the evidence introduced at trial The s trier of fact makes credibility determinations and may within the bounds of rationality accept or reject the testimony of any witness Despite the s defendant assertion of alleged discrepancies with his nickname and whether he was bald and toothless Detective Jordan testimony was not clearly unworthy of s belief See State v Bright 980398 pp 2324 La 4 776 So 1134 00 11 2d 1148 post conviction relief granted on other grounds 022793 La 5 04 25 875 So 37 2d The jury heard all of the testimony and viewed all of the evidence presented to it at trial and notwithstanding the alleged inconsistencies the jury found the defendant guilty 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 to be given evidence s is not subject to appellate review An appellate court will not reweigh the 11 evidence to overturn a factfinder determination of guilt State v Taylor 97 s 2261 pp 56 La App 1 Cir 9 721 So 929 932 98 25 2d 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 The fact that the record contains evidence 00 17 2d 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 2d 592 596 La App 1 Cir 1985 In finding the defendant guilty it is clear the jury rejected the defense s theory of misidentification A reasonable juror could have determined that the video of the drug transaction did not resolve whether or not the seller had patches of hair on the sides of his head or that the seller did have hair and shaved it off and that in any event Detective Jordan testimony was credible s enough to establish the defendant guilt s A reasonable juror could have also determined from the evidence that the defendant clearly was not toothless Thus despite the hyperbolic descriptions of the defendant oral condition s defense counsel suggested to Detective Jordan that the defendant did not have any teeth in his mouth and the defendant in his appeal brief stated that all of his front teeth were missing and that he was toothless the photographic evidence indicates the defendant had front teeth In Defendant Exhibit 1 the defendant s appeared to be missing two or three top teeth In State Exhibit 7 the s defendant appeared to be missing a single top tooth Further the drug transaction was very brief and the defendant barely spoke Accordingly a reasonable juror could have determined that nothing under these circumstances would have called to Detective Jordan attention the defendant teeth s s Finally a reasonable juror could have determined that while Shine may have been the defendant actual nickname the CI and detectives referred to the s defendant as Slim because it is a colloquialism It would not be uncommon to refer to a thin person as Slim regardless of his real name or actual nickname 7 The defendant arrest record indicated the defendant was five feet seven s inches tall and 160 pounds with a thin build The State evidence negated any reasonable probability that the s defendant was not properly identified as the suspect selling crack cocaine to Detective Jordan Detective Jordan identified the defendant in court as the person who sold him drugs and picked him from a photographic lineup The testimony of a single undercover police officer is sufficient to convict a defendant charged with drug distribution State v Conway 588 So 1369 1373 La 2d App 2 Cir 1991 See State v Christy 509 So 829 831 La App 1 Cir 2d writ denied 513 So 296 La 1987 Furthermore the guilty verdict returned 2d in this case indicates the jury believed the testimony of the State witnesses and s rejected the defense theory of misidentification See State v Andrews 94 s 0842 p 7 La App 1 Cir 5 655 So 448 453 95 2d After a thorough review of the record we find that the evidence negates any reasonable probability of misidentification and supports the jury verdict s We are convinced that viewing the 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 the defendant was guilty of distribution of cocaine This assignment of error is without merit ASSIGNMENT OF ERROR NO 2 In his second assignment of error the defendant argues the trial court erred in excusing a juror David Mitchell after being sworn and replacing him with the alternate juror Specifically the defendant contends the trial court granted the State cause challenge of Mitchell as punishment to the defendant s for attempting to communicate with Mitchell The only available remedy according to the defendant was to grant a mistrial After all jurors were sworn in but prior to opening statements the trial court became aware that the defendant attempted to communicate with a juror The prosecutor informed the trial court l I understand the defendant lip sank sic he didn speak t out loud but he moved his lips toward David Mitchell one of the jurors at the end of the day as he as Mr Mitchell was leaving and Mr Mitchell responded with a gesture as if you know he understood or he didn understand t After asking if anyone else had anything to say the trial court stated Well I do I noticed not after court was over but while court was still in session and we were in process of still selecting the jury I noticed the defendant mouthing words toward one of the jurors and gesturing toward one of the jurors I did not think that was appropriate I could not tell at that point who the juror might be He might be aiming that toward if any one in particular and after several seconds he ceased doing it I only saw him doing it for a short period of time But there definitely was between the defendant and at least one of the jurors an attempted communication of some sort So if that is the same incident that the deputy saw I don know but I know I did see it and I thought t it was inappropriate The prosecutor then called Deputy Blake Bourgeois with the St Mary Parish Sheriff Office who as a court security officer on duty witnessed the s incident Q And at the end of the day did you see the defendant move his lips in the direction of the juror with the yellow shirt A Yes I did Q Okay Did you see the juror in the yellow shirt respond after the defendant moved his lips towards A Yes I did That how I was able to identify him s s That how you were able to perceive that Q Okay communication took place A Right Q Okay A I saw the defendant moving his lips and I looked back to see who he was communicating with and I noticed it was a gentleman in a yellow shirt and he acknowledge sic he he just kind of bowed his head like yes Q Okay A And that the only expression I tried to read his lips but I s t couldn Q Okay And did you hear any sound A No Q Okay So you couldn hear them talking t A No Q You just saw lip movement A Right Q and a response by the A Right Q juror in the yellow shirt The trial court then questioned Deputy Bourgeois Q Where was the defendant seated when you when you sa him do that w 0 where was he A He was turned toward the jury leaving the room and he was turned towards them Q Was A And I happen to notice his mouth Q Was he standing or seated A He was seated Q He was seated And where was the juror A Approximate right behind Judge Conery Indicating ly Q Okay You indicating in the audience of the re A They were walking out They were all walking out Following this the prosecutor called David Mitchell and the following exchange took place Q Mr Mitchell can you state your name for the record A David Mitchell Q Okay Were you in court yesterday A Yes sir Q Okay And were you sworn as a member of the jury yesterday A Yes sir Q Okay What color was your shirt A Gold Q Okay Was it a bright A Well bright yellow Q Okay Yesterday as you were leaving did you see the defendant Mr Rutherford Jones look at you A Well he well yeah Q Okay Now when you just did that you shrugged your shoulders right there What what do you mean well yeah Did he move his mouth as if he was speaking Without making a noise did he lip sink sic anything to you A I wasn wasn paying attention t t Q Okay A Really Q But okay did he make any movement towards you as you were walking out in communication A Well not really I was Q Okay What do you mean by not really A He was just I mean I was Q I not there nothing you did wrong okay m s A Yeah Q We just trying to clarify something The re was here and he stated that the defendant Deputy Bourgeois looked at you and lip sink sic didn make a noise but just gestured toward you and t lip sink sic with his mouth and you acknowledged him and just nodded and walked off Do you recall the defendant doing that A Well I yeah But I didn really t Q Okay Okay A notice what he was saying Q Okay All right The court may disqualify a prospective petit juror from service in a particular case when for any reason doubt exists as to the competency of the Z It is unclear why the reference is to Judge Conery 10 prospective juror to serve in the case LSAC art 787 Alternate jurors in P Cr the order in which they are called shall replace jurors who become unable to perform or disqualified from performing their duties LSAC art 789 A P Cr A juror shall not be challenged for cause after having been temporarily accepted pursuant to Paragraph A of Article 788 unless the challenging party shows that the cause was not known to him prior to that time LSAC art 795 If it P Cr A is discovered after a juror has been accepted and sworn that he is incompetent to serve the court may at any time before the first witness is sworn order the juror removed and the panel completed in the ordinary course LSAC art P Cr 796 In granting the cause challenge to Mitchell the trial court stated Well the real issue is whether or not a defendant in sic attempt to influence a juror and get away with it That the real s issue And the deputy testified that he saw this gesture after the Court already said that it saw the defendant doing the same thin g while the jurors were seated in the box So this Court finds that the defendant deliberately tried communicating with the jury or a juror and now we know specifically what juror he was attempting to to communicate with in violation of any order of the Court or in violation of any statute that requires the jurors be isolated from such influence The defendant himself violated violated those those rules and now having found that he violated them with respect to juror Mitchell I going to grant the challenge to Mr Mitchell and replace m him with the alternate juror who was selected without opposition by both sides We agree with the trial court ruling s Substantial deference is to be accorded a trial court determination that a particular juror is unfit for service in s reviewing such determinations the standard is whether the trial court finding s was fairly supported by the record Absent a clear showing of abuse of discretion the trial court ruling as to the qualifications of a juror to serve s should not be disturbed on appeal 98 8 7 750 So 784 790 2d State v Letulier 971360 p 9 La It is necessary to give to the trial court the authority to dismiss prospective jurors in order to protect the proceedings from potential error Although LSAC art 787 gives to the trial court broad P Cr powers in determining the qualifications of prospective jurors this article should 11 be read in pari materia with LSAC arts 797 and 798 which set forth P Cr grounds upon which a juror may be challenged for cause State v Carr 618 2d So 1098 1105 La App 1 Cir writ granted in part on other grounds denied in part 629 So 378 La 1993 per curiam writ denied 940670 La 2d 94 4 635 So 1116 See Letulier 971360 at p 8 750 So at 78990 2d 2d The trial court has discretion to utilize the service of an alternate juror rather than to grant a mistrial upon a proper finding that this is the best course of action State v Fuller 454 So 119 123 La 1984 2d The testimony clearly established a communication communication between the defendant and Mitchell or attempted The trial court itself witnessed the exchange between the two and found it inappropriate In replacing Mitchell with the alternate juror whom neither party challenged the trial court was not punishing the defendant as asserted but rather was protecting the proceedings from potential error The trial court finding that s Mitchell should be removed was supported by the record We find no abuse of discretion in the trial court ruling Accordingly this s assignment of error is without merit The sentence for a conviction of distribution of cocaine is necessarily at hard labor See La R 40 S 967 b 4 B Accordingly the defendant life s sentence under the Habitual Offender Law must also be at hard labor See State v Bruins 407 So 685 687 La 1981 In sentencing the defendant 2d the trial court failed to provide that his life sentence was to be served at hard labor Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence LSAC art P Cr 2 920 authorizes consideration of such an error on appeal Further LSAC P Cr 3 The minutes reflect the trial court sentenced the defendant to life at hard labor under LSAR S 1 529 15 When there is a discrepancy between the minutes and the transcript the transcript prevails State v Lynch 441 So 732 734 La 1983 2d 12 A 882 authorizes correction by the appellate court4 We find that correction of this illegally lenient sentence does not involve the exercise of sentencing discretion and as such there is no reason why this court should not simply amend the sentence See State v Price 052514 La App 1 Cir 12 06 28 952 So 112 en banc writ denied 070130 La 2 976 So 1277 2d 08 22 2d Accordingly since a sentence at hard labor was the only sentence that could be imposed we correct the sentence by providing that it be served at hard labor CONVICTION AND HABITUAL OFFENDER AD7UDICATION AFFIRMED SENTENCE AMENDED TO PROVIDE THAT IT BE SERVED AT HARD LABOR AND AFFIRMED AS AMENDED 4 An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review LSA C art 882 P Cr A 13
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