State Of Louisiana VS Eric P. Hamilton
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1305 STATE OF LOUISIANA VERSUS ERIC P HAMILTON Judgment Rendered NOV 0 i 2013 Appealed from the 22 Judicial District Court In and far the Parish of St Tammany Louisiana Trial Court Number 507833 Honorable Raymond S Childress Judge Justin Caine Harrell Attorney for Appellant New Defendant Orleans LA Eric Hamilton Walter P Reed Attorneys for Appellee District State of Louisiana Attorney Covington LA Kathryn Landry Assistant District Attorney Baton Rouge LA BEFORE WHIPPLE C WELCH AND J CRAIN JJ WELCH J The defendant Eric P Hamilton was charged by amended bill of information with one count of possession of 400 grams or more of cocaine a violation of La R 40 and pled not guilty Following a jury trial S 967 c 1 F he was found guilty as charged by a unanimous verdict He moved for a new trial and in arrest ofjudgment but the motions were denied Thereafter he reurged the motions and they were again denied Subsequently the State filed a habitual offender bill of information against the defendant alleging he was a third felony habitual offender under La R 15 The defendant stipulated to the S 5291 b 3 A identity and the due process concerning the predicates and the trial court adjudged him a third habitual offender He was sentenced to imprisonment felony for the remainder of his natural life without benefit of probation parole or suspension of sentence Thereafter he moved for a new trial alleging n and ew material evidence and the motion was denied He now appeals challenging the sufficiency of the evidence challenging the trial court refusal to grant him a s continuance challenging the admission into evidence of cell phones and challenging the trial court denial of the motions for new trial For the following s reasons we affirm the conviction habitual offender adjudication and sentence FACTS Rodney Navarre testified at trial He stated he had at least five or six prior drug convictions but had no felony arrests since 2007 He had only known the defendant for approximately one year but had known Casey Johnson for ten years In March of 2011 Navarre traveled to Slidell to visit his brother who had liver cancer 1 Predicate 1 was set forth as the defendanYs Januazy 29 2002 conviction under Twenty second Judicial District Court Docket 335541 for possession with intent to distribute cocaine Predicate 2 was set forth as the defendanYs March 3 1994 guilty pleas under Orleans Parish District Court Docket 366176 to possession of over 400 grams of cocaine and possession with intent to distribute marijuana 2 According to Navarre Johnson and the defendant approached him and stated that they had a ar a proposition to make some money Navarre was instructed lick to follow the defendant to Vinton arre Na then waited in Vinton while the defendant retrieved a suitcase with four kilograms of cocaine The defendant put the cocaine in the trunk of the car that Navarre was driving The defendant and Johnson instructed Navarre to drive the cocaine to Javery in North Slidell Thereafter the defendant and Johnson took out in front of Navarre to see what was going on with the traffic After Navarre crossed the Mississippi River Bridge on I he was pulled 10 over by the police His vehicle was searched and the drugs were discovered He told the police he was transporting for the defendant and Johnson and agreed to deliver the drugs to the defendant and Johnson while being monitored by the police Navarre first delivered one kilogram of cocaine to Johnson at the Fina store on Bayou Liberty He then delivered three kilograms of cocaine to the defendant at Top Fuel on Thompson Road in Slidell In regard to the delivery of drugs to the defendant Navarre testified he saw the defendant in his green car at the agreed upon location walked to him and spoke to him Navarre put the drugs in the front seat of the defendant vehicle Navarre s indicated the defendant then put the drugs on the back seat of his vehicle The defendant told Navarre that the defendant was about to go to the lab and check it out Navarre testified the lab was where the defendant cooked cocaine and prepared it for distribution The defendant paid Navarre 12 and Navarre put 000 the money in the center console of the vehicle he was driving He surrendered the money to the police after the delivery On cross Navarre conceded he had been convicted in 2003 for examination possession with intent to distribute marijuana and served three years of a six year sentence in prison He also conceded he had been convicted in 2007 of a narcotics 3 offense involving greater than 200 grams but less than 400 grams of a controlled dangerous substance SUFFICIENCY OF THE EVIDENCE In assignment of error number 1 the defendant argues the evidence was insufficient to support the conviction because Navarre testimony was incredible s He claims Navarre originally told investigators that he and not the defendant traveled to Houston to purchase narcotics that initial police reports indicated that the 000 12 courier fee was in the defendant vehicle that Michelle Patton and Vincent s Ocampo ofthe Top Fuel Gas Station testified they saw Navane throw the duffle bag into the defendant vehicle that Patton did not see the defendant give Navarre s anything and that the defendant wife testified she spoke to the defendant on March s 15 2011 at approximately 630 a which according to Navarre m stestimony was thirty minutes after Navarre and the defendant left to purchase drugs in Houston The standard of review for sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant identity as the perpetrator of that crime beyond a s reasonable doubt In conducting this review we also must be expressly mindful of scircumstantial evidence test which states in part assuming every fact to Louisiana be proved that the evidence tends to prove in order to convict every reasonable hypothesis of innocence is excluded State v Wright 98 La App l Cir 0601 99 19 2 730 So 485 486 writs denied 99 La 10 748 So 2d 0802 99 29 2d 1157 0895 2000 La 11 773 So 732 quoting La R 15 00 17 2d S 438 When a conviction is based on both direct and circumstantial evidence the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution When the direct evidence is thus viewed the facts established by the direct evidence and the facts reasonably 4 inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essenrial element ofthe crime Wright 730 So at 487 2d In the instant case the defendant was charged with possession of cocaine in excess of 400 grains a violation of La R 40j To support a conviction S 967 c 1 F for possession of cocaine the State must present evidence establishing beyond a reasonable doubt that 1 the defendant was in possession of the drug 2 the defendant lrnowingly and intentionally possessed it and 3 the amount possessed was four hundred grams or more of cocaine or of a mixture or substance containing a detectable amount of cocaine ar of its analogues as provided in Schedule II 4 A of R 40 S 964 La R 40 Possession of narcotic drugs can be S 967 c 1 F established by actual physical possession or by constructive possession 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 ofphysical possession State v Major 2003 La 12 888 So 3522 04 1 2d 798 802 Furthermore guilty lalowledge 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 888 So 2d at 803 At trial St Tammany Parish Sheriff Office Detective Jason Prieto testified s he was on the DEA task force at the time of the offense and coordinated Navarre s monitored cocaine deliveries to the defendant and Johnson Detective Prieto indicated due to some miscommunication or a mistake on his part he had originally thought Navarre and the defendant had traveled to Houston together but he later determined they had actually traveled to Vinton together Detective Prieto also indicated he had written a report indicating The CI stated he ar she traveled to Houston Texas early that day and was followed in a separate vehicle by a black 5 male from Slidell area and it was the defendant The CI advised the defendant to follow him or her to Houston for the purpose of purchasing four kilos of cocaine from unlrnown individuals Additionally Detective Prieto indicated he had signed a report indicating the defendant was also found in possession of drug proceeds amounting 12 which was seized but he had not written the report 040 Michelle Patton testified she warked in the Top Fuel on the comer of U S Highway 190 and Thompson Road but was not there on March 15 2011 She had however reviewed the surveillance tape from that day She stated the tape showed the defendant meeting with a man in another vehicle at the gas pumps and that the other guy who was not the defendant threw a duffle bag in the back window of the s defendant vehicle She denied seeing anything placed into the vehicle from which the duffle bag had been taken On cross Patton conceded she did not examination know whether or not the defendant had instructed the other guy to throw the duffle bag into the back of the defendant vehicle s Vincent Ocampo testified he was working at the Top Fuel Gas Station on U S Highway 190 and Thompson Road in March of 2011 He indicated the surveillance tape for March 15 20ll had been cleaned up when the hard drive cleaned itself but he had reviewed the tape befare it was erased He claimed while the exchanges were done the bag was thrown in the back window of one of the vehicles On examination cross Ocampo conceded he did not know what was said in the three minute conversation between the men on the surveillance tape which occurred before the bag was allegedly thrown into the vehicle Sabrena Hamilton testified she was the wife of the defendant She claimed she was in Baton Rouge on March 15 2011 and called the defendant at approximately 30 m 6 a According to Sabrena Hamilton the defendant indicated he was getting two of their children ready for school and was going to take them to the bus stop 6 When Navarre was asked what time he and the defendant had left St Tammany Parish to tra to Vinton he answered that morning about 6 I think el 00 After a thorough review of the record we are convinced the evidence presented herein viewed in the light most favorable to the State proved beyond a reasonable doubt and to the exGlusion of every reasonable hypothesis of innocence all of the elements of possession of cocaine in excess of 400 grams and the defendant identity as a perpetrator of that offense The verdict rendered in this s case indicates the jury rejected the defendant theory that the drugs belonged to s Navarre rather than him When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt See State v Moten 510 So 55 61 2d La App l Cir writ denied 514 So 126 La 1987 No such hypothesis 2d exists in the instant case Further the verdict rendered against the defendant indicates the jury accepted the testimony of Navarre and rejected contradictory testimony if any from other witnesses As the trier of fact the jury was free to accept or reject in whole or in part the testimony ofany witness State v Johnson 0385 99 La App l Cir 11 745 So 217 223 writ denied 2000 La 99 5 2d 0829 00 13 11 774 So 971 On appeal this Court will not assess the credibiliry of 2d witnesses or reweigh the evidence to overlurn a fact finder determination of guilt s State v Glynn 94 La App l Cir 4 653 So 1288 1310 writ 0332 95 7 2d denied 1153 95 La 10 661 95 6 2d So 464 Additionally in reviewing the evidence we cannot say that the fact finder determination was irrational under the s facts and circumstances presented to him See State v Ordodi 2006 La 0207 06 29 11 946 2d So 654 662 An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of 7 innocence presented to and rationally rejected by the fact finder See 5tate v Calloway 2007 La 1 1 So 417 418 per curiam 2306 09 21 3d This assignment of error is without merit DENIAL OF CONTINUANCE In assignment of error number 2 the defendant argues the trial court abused its discretion in denying his motion to continue filed on October 10 2011 because the time between counsel enrollment and the commencement of trial was so s minimal as to shock the conscience and call into question the basic fairness of the proceedings The granting or denial of a motion for continuance rests within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion State v Albert 96 La App l Cir 1991 97 20 6697 So 1355 1360 2d On October 10 2011 the day of trial the defendant moved for a continuance R 38 He alleged he had filed a supplemental motion for discovery requesting tremely ea material evidence The supplemental motion for discovery also filed October 10 2011 requested a and ali documents statements and recordings ny particularly any and all surveillance video footage from the Top Fuel Gas Station located at 2297 Hwy 190 Slidell Louisiana 70460 on March 15 2011 and a ny and all documents statements and record particularly any and all Radio mgs Dispatch Logs in this matter At the hearing on the motion the court noted it was the second time the matter had been set on the docket In regard to the request for the surveillance tape the State indicated the Sheriff Office had sent someone to attempt to obtain the tape In s regard to the request for radio dispatch logs the State indicated no such logs existed 2 The case was originally set to begin trial on August 22 2011 On motion of the defense the trial was continued to September 19 20ll and thereafter to October 10 2011 8 because no dispatches had been made to the scene priar to the arrest Defense counsel Peter John indicated he had been retained around August 26 2011 the B 404 was filed on October 3 2011 and the defense needed to draft a response Additionally he indicated he wanted to subpoena the cell phone records of the co defendant The State responded that the cell phone recards may or may not show anything and telling where the cell phone is without a SIM card nobody can do that Further the State argued the cell phone records are not going to show anykhing because all of the calls were made once Na got close to St Tammany arre Parish Additionally the State argued the drug transaction was on the KEL tape so there was no surprise to the defense even without the surveillance tape The State also pointed out witnesses were coming from Texas and from Baton Rouge far the case The court asked the defense if it was attempting to subpoena its own clienYs records to determine if they showed whether or not he traveled to Texas as alleged by the confidential informant and the defense answered affirmatively The court denied the request for continuance noting that the issues raised by the defense could have been addressed at a pretrial conference a month ago and fmding in any event that the claims regarding cell phone records did not appear relevant There was no clear abuse of discretion in the denial of the motion for continuance The case relied upon by the defense v Snyder 98 La State 1078 99 14 4 750 So 832 856 that the denial of a motion for 2d recognized 57 continuance on grounds of counsel lack of preparedness normally does not s warrant reversal unless counsel shows specific prejudice but the specific prejudice requirement has been disregarded where the preparation time was so minimal as to call into question the basic fairness of the proceeding The court in Snyder also held that when preparation time is unreasonably short counsel has been diligent 3 There was no codefendant in this matter Navazre 9 Presumably the defense was referring to and there is a general allegation of prejudice denial of a motion for continuance is an abuse of discretion Snyder 750 So at 856 Unlike the cases referenced in 2d Snyder where defense counsel had tl days or less to prepare for ri defense ree counsel herein was enrolled in the case approximately six weeks prior to trial Furkher the motion for continuance was based on the need to obtain supplemental discovery The supplemental motion for discovery requested surveillance footage that no longer existed and radio dispatch recards that never existed The cell phone records mentioned at the hearing which may or may not have been relevant were always available to the defense because they were the defendant srecords This assignment of error is without merit IMPROPER ADMISSION OF EVIDENCE In assignment of error number 3 the defendant argues the trial court erred in allowing evidence to be admitted that he was in possession of six cell phones at the time of the offense because that evidence was irrelevant highly prejudicial and without proper foundation On redirect examination the State asked Detective Prieto how many cell phones were obtained from the defendant and he replied I believe there were six six phones in his car At the bench the defense stated t line of questioning his Counsel has gone with Pm going to pass to ha the opportunity to take a shot at e impeach because of this cell phones So if we going to continue going into that re m Igoing to establish that some of those phones came from the shed an old car and other places not to what you said that he seized them from my client The court advised the defense that if it wanted to object that the evidence regarding the cell phones was outside the scope of cross the court would sustain the examination objection and order the last comment of Detective Prieto stricken from the record The defense replied o let him ask it and I can clean it up if I allowed to ask r m him some questions 10 The defendant failed to object to the challenged testimony Accordingly he failed to preserve the issue of Detective Prieto improper testimony if any for s review See La Code Evid art 103 Error may not be predicated upon a 1 A ruling which admits a timely objection evidence unless a substantial right of the party is affected and appears ofrecord stating the specific ground of objection La Code Crim P art 841 An irregularity or error cannot be availed of after A verdict unless it was objected to at the time of occurrence The grounds for objection must be sufficiently brought to the court attention to allow it the s opportunity to make the proper ruling and prevent or cure any error See State v Trahan 93 La App l Cir 5 637 So 694 704 1116 94 20 2d This assignment of error is without merit MOTION FOR MISTRTAi In assigrunent of enor number 4 the defendant argues the trial court erred in denying the motion for mistrial after Deputy Boynton testified concerning the drug transaction Louisiana Code of Criminal Procedure article 770 provides Upon motion of a defendant a mistrial shall be ordered when a remark ar comment made within the hearing of the jury by the judge district attorney or a court official during the trial or in argument refers directly or indirectly to 1 Race religion color ar national origin if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind ofthe jury 2 Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible 3 The failure ofthe defendant to testify in his own defense or 4 The refusal of the judge to direct a verdict An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial If the defendant however requests that only an admonition be given the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial 11 Additionally La C art 771 provides in pertinent part P In the following cases upon the request of the defendant the court shall promptly admonish the jury to disregard a remark or comment made during the trial or in argument within the hearing of the jury when the remark is inelevant or immaterial and of such a nature that it might create prejudice against the defendant or the state in the mind ofthe jury 2 When the remark or comment is made by a witness or person other than the judge district attorney ar a court official regardless of whether the remark or comment is within the scope of Article 770 In such cases on motion of the defendant the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial Upon motion of a defendant a mistrial shall be ardered and in a jury case the jury dismissed when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial or when authorized by La Code Crim P arts 770 or 771 La Code Crim P art 775 A mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial Determination of whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for a mistrial will not be disturbed on appeal without an abuse of that discretion State v Berry 95 1610 La App l Cir 11 684 So 439 449 writ denied 97 La 96 8 2d 0278 97 10 703 So 603 2d On rebuttal the State presented testimony from St Tammany Parish s Sheriff Office Detective Julie Boynton She testified she was part of the surveillance team that participated in the arrest of the defendant on March 15 2011 She was parked close to the defendant svehicle during the incident She testified Navarre walked over to the defendant vehicle and spoke to the s defendant The State then asked w happened after that and the defense hat 12 asked for a side bar The defense argued Detective Boynton name was never s disclosed to the defense complained of trial by ambush and moved for a mistrial The trial court ruled it would strike the testimony of Detective Boynton Thereafter the court instructed the jury Ladies and gentlemen I will direct you to or direct the record to be the testimony of this witness will be sYricken from the record and re you not to contemplate or consider any of the testimony given by this previous witness There was no abuse of discretion in denying the motion for mistrial Presentation of testimony from Detective Boynton did not provide a basis for a mandatory mistrial under La Code Crim P art 770 At most the testimony from this undisclosed witness implicated the discretionary mistrial provisions of La Code Crim P art 771 as or immaterial and of such a nature that it might 2 irrelevant create prejudice against the defendant in the mind of the jury Consistent with Article 771 the trial court promptly admonished the jury to disregard Detective s Boynton testimony Additionally under Article 775 the challenged testimony did not make it impossible for the defendant to obtain a fair trial The defense objected before Detective Boynton made any reference to the defendant accepting the drugs from Navarre or paying him for them and her testimony placing him at the gas station was cumulative of other evidence at trial This assignment of error is without merit MOTION FOR NEW TRIAL In assignment of error number 5 the defendant argues the trial court erred in denying his motion for new trial based on posttrial discovery of cell phone records which eviscerate dthe credibility of Navarre La Code Crim P art 851 in pertinent part provides The motion for a new trial is based on the supposition that injustice has been done the defendant and unless such is shown to ha e been the case the motion sha11 be denied no matter upon what allegations it is grounded 13 The court on motion of the defendant shall grant a new trial whenever 3 New and material evidence that notwithstanding the exercise of reasonable diligence by the defendant was not discovered before or during the trial is available and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty In order to obtain a new trial based on newly discovered evidence the defendant has the burden of showing 1 the new evidence was discovered after trial 2 the failure to discover the evidence at the time of trial was not caused by lack of diligence 3 the evidence is material to the issues at trial and 4 the evidence is of such a nature that it would probably have produced a different verdict State v Smith 96 La App 1 Cir 6 697 So 39 43 In 0961 5L 97 20 2d evaluating whether or not the newly discovered evidence warrants a new trial the test to be employed is not simply whether another jury might bring in a different verdict but whether the new evidence is so material that it ought to produce a verdict different from that rendered at trial The trial court denial of a motion for s new trial will not be disturbed absent a clear abuse of discretion State v Maize 0736 94 La App l Cir 5 655 So 500 517 writ denied 95 La 95 2d 1894 95 15 12 664 So 451 2d The defendant was convicted on October 12 2011 On September 7 2012 he moved for a new trial alleging n and material evidence On January 14 ew 2013 he filed a supplemental motion for new trial alleging the September 7 2012 motion was based on receipt of his phone records from Verizon Wireless and the supplemental motion was based on the receipt of the phone records of Navarre The supplemental motion set forth Like the records previously submitted to the Court as part of s Defendant Motion for New Trial the instant Sprint records bear strongly on Navarre credibility as well as demonstrate that the s s State factual contentions at trial 14 namely that Navarre and Defendant conspired to purchase narcotics from the Houston area and travel in tandem through Louisiana are patently false At the hearing on the motion the defense stated it had subpoenaed two witnesses both cell phone records custodians but the representative from Sprint was testifying at another trial in Tulsa Oklahoma The defense offered to proffer the substance of the testimony from the unavailable witness In the proffer the defense set forth that the Verizon Wireless records concerned the defendant cell phone and Jasmine Tell would have testified the s records were kept in the ordinary course of business and indicated the defendant and the defendant cell phone were in the St Tammany Parish area the entire s hour 24 day of March 15 2011 the very same time that the defendant was said to have been travelling from Covington to Houston back to Covington and purchasing drugs The defense also set forth in the proffer that the Sprint recards concemed Navarre cell phone and Debra Lewis would have testified the records s were kept in the ordinary course of business and indicated Navarre phone calls s on the morning of March 15 2011 and continuing into the afternoon originated from the Houston area and indicated he traveled in an eastward direction that day Additionally in the proffer the defense set forth Natalie Perkins would have testified that on the morning of March 15 2011 the defendant was at her residence providing lawn care Demetrius Smith would have testified that on March 15 2011 the defendant went to Smith address with approximately s 000 12 in an unsuccessful attempt to salvage and prevent foreclosure of Smith s property and Casey Johnson would have testified that prior to March 15 201 l he had neither met nor spoken to the defendant The State argued regardless of what the records showed there was no doubt that the defendant had in his possession multiple kilograms of cocaine and gave Navarre 12 for the drugs The State also argued there were multiple cell 500 15 phones in the case and anything that happened before the drug deal with the cell phones was irrelevant and would have nothing to do with the verdict The court noted the issue was whether the new evidence was so material that it ought to produce a different result than the verdict that was reached by the jury that heard the testimony of the various witnesses at trial The court found multiple cell phones were involved in the case and the evidence offered in support of the motion for new trial failed to reach the tl for the granting of the motion reshold and thus the motion was denied There was no clear abuse of discretion in denying the motion for new trial based on newly discovered evidence Newly discovered evidence affecting only a s witness credibility ordinarily will not support a motion far a new trial because new evidence which is merely cumulative or impeaching is not according to the repeated often statement of the courts an adequate basis for the grant of a new trial State v Johnson 98 La App l Cir 4 734 So 800 808 1407 99 1 2d writ denied 99 La 10 748 So 439 1386 99 1 2d This assignment of error is without merit For the foregoing reasons the defendant conviction habitual offender s adjudication and sentence are affirmed CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 16
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