State of Louisiana Versus Eric Richardson

STATE OF LOUISIANA NO. 18-KA-717

VERSUS FIFTH CIRCUIT

ERIC RICHARDSON COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-6969, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

September 04, 2019

ROBERT M. MURPHY, AD HOC
JUDGE

Panel composed of Judges Marc E. Johnson,
John J. Molaison, Jr., and Robert M. Murphy, Ad Hoc

AFFIRMED.
RMM
MEJ
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Paul D. Connick, Jr.
Terry M. Boudreaux
Thomas J. Butler
Zachary P. Popovich

COUNSEL FOR DEFENDANT/APPELLANT,
ERIC RICHARDSON
Gwendolyn K. Brown

DEFENDANT/APPELLANT,
ERIC RICHARDSON
In Proper Person

MURPHY, AD HOC, J.

On appeal, defendant challenges his multiple narcotics convictions. For the

following reasons, we affirm defendant’s convictions and sentences.

Factual and Procedural History

In October of 2016, Lisa Cassara, a Parole Officer with the Louisiana

Department of Corrections, Office of Probation and Parole, contacted Detective

William Whittington of the Narcotics Division of the Jefferson Parish Sheriff’s

Office (“JPSO”) to report that one of her parolees – a convicted cocaine distributor

named Eric Richardson – was frequenting a known “high crime area” in Metairie

after curfew. Based upon this information, Detective Whittington initiated an

investigation of Richardson including electronic and traditional surveillance by law

enforcement officers and interviews with confidential informants.

One of the informants described Richardson and his vehicle and stated that

Richardson moved “large quantities” of heroin through Jefferson Parish so

Detective Whittington decided to set up a controlled buy using the CI. On

November 12, 2016, a team of narcotics enforcement officers from JPSO

conducted surveillance of Richardson. Detective Gary Bordelon informed the

team when Richardson drove away from his apartment in Kenner in the white Ford

Explorer with temporary license plates as described by the CI. Detective

Whittington, who was waiting with the CI, determined that the CI did not have any

contraband in the CI’s possession before interacting with Richardson.

Detective Whittington observed Richardson arrive at the location where the

CI had arranged to make the controlled buy. Once at the location, Detective

Whittington observed Richardson meet and interact with the CI and witnessed,

based on his training, education, and experience, what Detective Whittington

believed to be a hand-to-hand drug transaction. After the interaction, Richardson

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left; the CI again met with Detective Whittington and provided Whittington with

the heroin that the CI had purchased from Richardson.

Immediately, Detective Whittington prepared an affidavit and search warrant

for Richardson’s residence and vehicle. Coincidentally, the officers learned during

their investigation that there was an outstanding attachment for Richardson. Once

the warrants were obtained, the officers approached Richardson outside of his

residence with the intent to arrest him on the outstanding attachment. When they

made their identity as law enforcement known, however, Richardson fled into his

backyard and into his apartment. Although a struggle ensued, Detective

Whittington ultimately detained Richardson and read him his rights under Miranda

v. Arizona.1

In the subsequent search of Richardson’s residence and car pursuant to the

warrant, including a small dirt area of the backyard specifically referred to by the

CI, the officers recovered two plastic jars buried in the ground. In the first, there

were approximately 78 grams of cocaine, 10 grams of heroin, 20 dosage units of

Diazepam, and 5 dosage units of Tramadol. In the second, there were

approximately 220 units of methamphetamine. Inside a backyard shed, the officers

also recovered a leather satchel containing sandwich bags, a ceramic plate, and

three digital scales.2 Defendant was placed under arrest and read his Miranda

rights; thereafter, defendant provided a statement to Detective Whittington

admitting ownership of the narcotics and other items seized during the search.

On December 15, 2016, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Eric Richardson, with possession of cocaine

1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2
Sergeant Joshua Collins, who the defense stipulated to as an expert in the field of narcotics
investigations, packaging, and distribution, concluded that based on the evidence in this case, defendant
possessed with the intent to distribute heroin and methamphetamine. Sergeant Collins concluded that the
quantity, weight, and dosage units of the variety of types narcotics as well as the packaging of the
narcotics in bundles and the presence of numerous digital scales indicates a mid-level distributor of
narcotics.

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between twenty-eight and two hundred grams, in violation of La. R.S. 40:967(F);

possession with intent to distribute MDMA, in violation of La. R.S. 40:966(A);

possession with intent to distribute heroin, in violation of La. R.S. 40:966(A);

possession of Tramadol, in violation of La. R.S. 40:969(C); and possession of

Diazepam, in violation of La. R.S. 40:969(C). On April 12, 2017, after receiving

the scientific analysis of the contraband, the State filed a superseding bill of

information amending count two to charge defendant with possession with intent to

distribute methamphetamine, in violation of La. R.S. 40:967(A), rather than

possession with intent to distribute MDMA. Defendant was re-arraigned on the

superseding and amending bill and pled not guilty.

On April 18, 2018, after a bench trial, the trial judge found defendant guilty

as charged on all five felony counts.3 On May 22, 2018, the trial court sentenced

defendant to fifteen years imprisonment at hard labor for possession of cocaine

between twenty-eight and two hundred grams; to fifteen years at hard labor for

possession with intent to distribute methamphetamine; to twenty years

imprisonment at hard labor for possession with intent to distribute heroin; to five

years imprisonment at hard labor for possession of Tramadol; and to five years

imprisonment at hard labor for possession of Diazepam.4 The trial court further

ordered defendant’s sentences to be served concurrently with each other and to any

other sentence defendant may be serving.

On May 22, 2018, the State also filed a multiple offender bill of information

alleging defendant to be a second felony offender. Defendant, after being advised

of his rights, stipulated that he was a multiple felony offender. The trial court then

3
On that day in Twenty-Fourth Judicial District Court case number 16-7309, defendant was also tried and
found guilty of the misdemeanor offense of resisting an officer. Although this misdemeanor offense,
which was charged by a separate bill of information, was tried at the same time as the felonies, it is not
properly before this Court on appeal. See Defendant’s Third Counseled Assignment of Error.
4
The trial court also sentenced defendant on his misdemeanor conviction to serve six months in parish
prison and ordered his misdemeanor sentence to run concurrently with the sentences imposed on his
felony convictions.

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vacated defendant’s original sentence for his conviction for possession with intent

to distribute heroin, and imposed an enhanced sentence under La. R.S. 15:529.1 of

twenty-five years imprisonment at hard labor without benefit of probation or

suspension of sentence. The trial court further ordered defendant’s enhanced

sentence to be served concurrently with his four original counts and recommended

defendant for participation in any self-help, work release, re-entry, and substance

abuse programs available through the Department of Corrections. Defendant now

challenges his convictions.

Discussion

On appeal, defendant has filed a counseled brief with three assignments of

error: first, the trial court erred by denying the motion to reveal the identity of the

confidential informant; second, the trial court erred by denying the motion for an in

camera inspection; and, third, the evidence is insufficient to support the

misdemeanor charge. Further, defendant filed a pro se brief with two assignments

of error: first, the evidence was insufficient to support his convictions and, second,

the trial court erred in denying his motion to suppress evidence.

Sufficiency of the Evidence

When the issues on appeal relate to both the sufficiency of the evidence and

one or more trial errors, the reviewing court should first determine the sufficiency

of the evidence by considering the entirety of the evidence. State v. Hearold, 603

So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence

was insufficient, then the defendant is entitled to an acquittal, and no further

inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the

evidence, both admissible and inadmissible, is sufficient to support the conviction,

the defendant is not entitled to an acquittal, and the reviewing court must consider

the assignments of trial error to determine whether the accused is entitled to a new

trial. Id.; See also State v. Nguyen, 05-569 (La. App. 5 Cir. 2/3/06), 924 So.2d

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258, 262. Thus, we will address defendant’s pro se assignment of error regarding

the sufficiency of the evidence first.

In reviewing the sufficiency of evidence, an appellate court must determine

that the evidence, whether direct or circumstantial, or a mixture of both, viewed in

the light most favorable to the prosecution, was sufficient to convince a rational

trier of fact that all of the elements of the crime have been proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied,

535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the

jury that “assuming every fact to be proved that the evidence tends to prove, in

order to convict, it must exclude every reasonable hypothesis of innocence.” La.

R.S. 15:438. The reviewing court is not required to determine whether another

possible hypothesis of innocence suggested by the defendant offers an exculpatory

explanation of events. Rather, the reviewing court must determine whether the

possible alternative hypothesis is sufficiently reasonable that a rational juror could

not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-

3342 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La. App. 5

Cir. 1/27/04), 866 So.2d 973, 977.

In this case, defendant was convicted of five counts of narcotics possession:

possession of cocaine between twenty-eight and two-hundred grams; possession

with intent to distribute methamphetamine; possession with intent to distribute

heroin; possession of Tramadol; and possession of Diazepam. Although there are

different elements required to support these five crimes, defendant only challenges

the State’s alleged failure to prove the element of possession beyond a reasonable

doubt for each of the counts.

18-KA-717 5

In Louisiana, the element of possession may be established by showing

defendant exercised either actual or constructive possession of the substance. State

v. Lewis, 04-1074 (La. App. 5 Cir. 10/6/05), 916 So.2d 294, writ denied, 05-2382

(La. 3/31/06), 925 So.2d 1257. A person not in physical possession of the drug is

considered to be in constructive possession of the drug, even though the drug is not

in his physical custody, when it is under that person’s dominion and control. Id.

The key factors to be considered in determining whether a defendant exercised

dominion and control sufficient to constitute constructive possession are the

defendant’s knowledge that illegal drugs were in the area, his relations with a

person found to be in actual possession, the defendant’s access to the area where

the drugs were found, evidence of recent drug use by the defendant, the existence

of drug paraphernalia, and evidence that the area was frequented by drug users.

Id.; State v. Manson, 01-159 (La. App. 5 Cir. 6/27/01), 791 So.2d 749, 761, writ

denied, 01-2269 (La. 9/20/02), 825 So.2d 1156. “Mere presence in an area where

drugs are found or mere association with the person in actual possession does not

constitute constructive possession.” State v. Jones, 04-1258 (La. App. 5 Cir.

4/26/05), 902 So.2d 426, 431. However, “[p]roximity to the drug, or association

with the possessor, may establish a prima facie case of possession when colored by

other evidence.” Id.

In the instant case, defendant’s parole officer reported that his movements,

which were electronically monitored, revealed that he was frequenting a high

crime area and violating his curfew. Under surveillance by narcotics officers from

JPSO, a confidential informant conducted a controlled buy of heroin from

defendant, which gave the officers probable cause to obtain a search warrant for

defendant’s residence.5 After being read his Miranda6 rights and being informed

5
Defendant’s address was confirmed by his parole officer at trial.
6
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

18-KA-717 6

that a search of the premises would be conducted, defendant admitted, “whatever

you find is mine.” The search disclosed approximately 78 grams of cocaine, 10

grams of heroin, 20 dosage units of Diazepam, 5 dosage units of Tramadol, and

221 units of methamphetamine buried in two plastic bottles in a small area of

“disturbed dirt” surrounded by grassy area in defendant’s backyard. Inside a

nearby shed in the backyard, the officers also recovered a leather bag containing

sandwich bags, a ceramic plate, and three digital scales.

After discovery of the narcotics, defendant was placed under arrest and

advised of his Miranda rights. During his subsequent statement to Detective

Whittington, defendant admitted that he alone owned the narcotics and other items

seized during the search. Evidence concerning defendant’s prior convictions for

possession with intent to distribute heroin and possession of over 28 grams of

cocaine was also admitted at trial under La. C.E. art. 404(B).

Defendant’s admissions, coupled with his access to the area where the drugs

were found, defendant’s prior drug activities, and existence of paraphernalia, are

sufficient to satisfy the possession element of the charged offenses. Thus, based on

the testimony presented at trial and the factors discussed in Lewis, supra, we find

that the State produced sufficient evidence to show defendant constructively

possessed the drugs found in his backyard and, therefore, find the evidence is

sufficient under the Jackson standard to support the convictions.

In his second pro se assignment of error, defendant argues that the trial court

erred in refusing to suppress the narcotics confiscated from his backyard, which

ultimately led to his convictions. He maintains that the search of his backyard was

outside the parameters of the search warrant, which violated his Fourteenth

Amendment right. Defendant further contends the warrant itself was deficient as it

was based upon information from an unnamed informant with no indication as to

the informant’s truthfulness or reliability.

18-KA-717 7

During the suppression hearing and at trial, Detective Whittington testified

regarding his investigation into defendant’s suspected drug activity. At the

conclusion of the hearing, defendant argued that the evidence and statement should

be suppressed because the warrant was based on information from a CI that lacked

credibility and because Detective Whittington had failed to put certain facts from

the affidavit into the warrant that supplied the probable cause.

The State, in turn, argued that the information the CI provided concerning

defendant was independently corroborated, and the search warrant was validly

obtained based on probable cause garnered from the controlled buy between

defendant and the CI. The State further maintained that the search warrant was not

invalid simply because additional inculpatory information was not placed in the

application. After listening to the arguments of counsel, the trial court denied

defendant’s motions to suppress.

Defendant now raises on appeal two arguments in support of his position

that his motion to suppress evidence should have been granted. First, he alleges

that the search of his backyard was done in violation of his Fourteenth Amendment

right because it was outside the parameters of the search warrant which only

provided for the search of his residence. However, defense counsel did not argue

this basis for suppression in either his written motion to suppress or at the motion

to suppress hearing.

Articulating a new basis for the motion to suppress for the first time on

appeal is prohibited under La. C.Cr.P. art. 841, since the trial court would not be

afforded an opportunity to consider the merits of the particular claim. State v.

Berroa-Reyes, 12-581 (La. App. 5 Cir. 1/30/13), 109 So.3d 487, 496 (citing State

v. Harris, 414 So.2d 325 (La. 1982)). Louisiana courts have long held a defendant

may not raise new grounds for suppressing evidence on appeal that he did not raise

at the trial court in a motion to suppress. State v. Montejo, 06-1807 (La. 5/11/10),

18-KA-717 8

40 So.3d 952, 967, cert. denied, 562 U.S. 1082, 131 S.Ct. 656, 178 L.Ed.2d 513

(2010); see also La. C.Cr.P. art. 841(A) (“An irregularity or error cannot be availed

of after verdict unless it was objected to at the time of occurrence.”); State v.

Simmons, 422 So.2d 138 (La. 1982); Harris, supra; State v. Davis, 357 So.2d 1125

(La. 1978); State v. Carter, 10-973 (La. App. 5 Cir. 8/30/11), 75 So.3d 1, writ

denied, 11-2060 (La. 2/10/12), 80 So.3d 469 (holding defendant waived the

argument that evidence should be suppressed because the search exceeded the

scope of the search warrant when the defense counsel never asked the trial judge to

rule on the “constitutionally overbroad” issue asserted for the first time on appeal);

State v. Brown, 434 So.2d 399 (La. 1983) (rejecting defendant’s alternative

argument regarding the denial of his motion to suppress because he had not raised

the issue at trial); State v. Johnson, 07-1040 (La. App. 4 Cir. 9/10/08), 993 So.2d

326, 330-31, writ denied, 08-2649 (La. 6/5/09), 9 So.3d 868 (“failure to raise a

ground for suppressing an item of evidence in a properly filed motion to suppress

waives such a basis for exclusion on appeal”); State v. Jackson, 04-1388 (La. App.

5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La. 2/10/06), 924 So.2d

162 (defendant is limited on appeal to the grounds he articulated at trial and a new

basis for a claim, even if it would be meritorious, cannot be raised for the first time

on appeal). Accordingly, we find that defendant has waived the argument that the

evidence should have been suppressed because the location searched was outside

of the scope of the warrant.

Second, defendant asserts the warrant itself was deficient because it was

lacking in probable cause having been based upon information from an unnamed

informant with no indication as to the informant’s truthfulness or reliability.

The Fourth Amendment to the United States Constitution and Article 1, § 5

of the Louisiana Constitution prohibit unreasonable searches and seizures. State v.

Thomas, 08-390 (La. App. 5 Cir. 1/27/09), 8 So.3d 80, 83, writ denied, 09-0626

18-KA-717 9

(La. 11/25/09), 22 So.3d 170. If evidence is derived from an unreasonable search

or seizure, the proper remedy is to exclude the evidence from trial. Id. A

defendant who is adversely affected may move to suppress evidence from the use

at the trial on the merits on the ground that it was unconstitutionally obtained. La.

C.Cr.P. art. 703(A).

As a general rule, searches and seizures must be conducted pursuant to a

validly executed search warrant or arrest warrant. State v. Gaubert, 14-396 (La.

App. 5 Cir. 12/16/14), 167 So.3d 110, 114. A search warrant may be issued only

upon probable cause established to the satisfaction of a magistrate, by the affidavit

of a credible person, particularly describing the person or place to be searched and

the things to be seized. Id. Probable cause for the issuance of a search warrant

exists when the facts and circumstances within the affiant’s knowledge and of

which he has reasonably trustworthy information, are sufficient to support a

reasonable belief that an offense has been committed and that evidence or

contraband may be found at the place to be searched. Id. The determination of

probable cause does not rest on an officer’s subjective beliefs or attitudes but turns

on a completely objective evaluation of all the circumstances known to the officer

at the time of his challenged action. Id. A search warrant must establish a

probable continuing nexus between the place sought to be searched and the

property sought to be seized. Id.

When evidence is seized pursuant to a search warrant, the defendant bears

the burden of proof at a hearing on his motion to suppress that evidence. State v.

Falcon, 13-849 (La. App. 5 Cir. 3/12/14), 138 So.3d 79, 88, writ denied, 14-769

(La. 11/14/14), 152 So.3d 877 (citing La. C.Cr.P. art. 703(D)). A trial court has

great discretion when ruling on a motion to suppress, and its ruling will not be

disturbed absent an abuse of that discretion. State v. Ables, 16-538 (La. App. 5 Cir.

18-KA-717 10

2/8/17), 213 So.3d 477, 482, writ denied, 17-488 (La. 11/28/17), 230 So.3d 221;

State v. Nicholas, 06-903 (La. App. 5 Cir. 4/24/07), 958 So.2d 682, 686.

The task for a reviewing court is simply to ensure that under the totality of

the circumstances, the magistrate had a substantial basis for concluding that

probable cause existed. State v. Payne, 10-46 c/w 10-47 (La. App. 5 Cir. 1/25/11),

59 So.3d 1287, 1296, writ denied, 11-0387 (La. 9/16/11), 69 So.3d 1141. Within

its four corners, an affidavit must contain the facts establishing the existence of

probable cause for issuing the warrant. Id. Moreover, if the magistrate finds the

affidavit sufficiently detailed and reliable to show probable cause, the reviewing

court should interpret the affidavit in a realistic and common sense fashion, being

aware that it is normally prepared by non-lawyer police officers in the midst and

haste of a criminal investigation. State v. Bonilla, 15-529 (La. App. 5 Cir.

2/24/16), 186 So.3d 1242, 1260, writ denied, 16-0567 (La. 5/2/16), 206 So.3d 881,

cert. denied, -- U.S. --, 137 S.Ct. 239, 196 L.Ed.2d 183 (2016). Within these

guidelines, courts should strive to uphold warrants to encourage their use by police

officers. Id.

At the motion to suppress hearing, Detective Whittington testified that he

prepared an affidavit for a search warrant for defendant’s residence. The affidavit

for the warrant was presented to Commissioner Patricia Joyce, who after finding

probable cause, issued the search warrant. During the hearing, the affidavit for the

search warrant was introduced into evidence, and the trial court listened to the

testimony of Detective Whittington regarding the information provided by the CI,

which formed the basis of probable cause for the search warrant.

Among the facts provided, it was relayed that Detective Whittington had

received information from a reliable and credible CI regarding narcotics trafficking

by defendant from his residence at 1600 Newport Place. The CI provided a

description of defendant, his date of birth, and a description of the vehicle he

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drove. In the affidavit, Detective Whittington further discussed the CI’s firsthand

knowledge of defendant’s unlawful activities due to having purchased narcotics

from him in the past. Also in the affidavit, Detective Whittington described the

controlled buy that took place between the CI and defendant for heroin. He

asserted that defendant had informed the CI during the controlled buy that he was

in possession of additional quantities of heroin and should contact him if more was

desired.

During the hearing, Detective Whittington discussed in detail his working

relationship with the CI, confirming that the CI had previously proven reliable,

having provided information to him on prior occasions that led to narcotics arrests.

Moreover, Detective Whittington was able to corroborate the information given by

the CI regarding the specific type of vehicle defendant drove, where he was

residing, and where the narcotics would be located. Under the totality of the

circumstances, we find a sufficient basis upon which the trial court could have

found probable cause for the issuance of the search warrant in this case. Gaubert,

167 So.3d at 115; State v. Robinson, 03-1350 (La. App. 5 Cir. 3/30/04), 871 So.2d

575, 580, writ denied, 04-1081 (La. 11/15/04), 888 So.2d 767 (citing Illinois v.

Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). And while the

veracity, reliability, or basis of knowledge of a CI is relevant in evaluating

probable cause, it is not the determining factor. Id.

Accordingly, we find no abuse of the trial court’s discretion in denying

defendant’s motion to suppress the evidence obtained from the execution of the

search warrant.

Returning to defendant’s counseled assignments of error, we will address the

first and second assignments of error, which are related, together. In them,

defendant argues that he was denied his right to confront his accusers and his right

to present a defense as a result of the trial court’s failure to disclose to him the

18-KA-717 12

identity of the CI or, at a minimum, conduct an in camera inspection of the CI to

determine the CI’s reliability. Defendant argues that there was no independent

source other than the CI for the information that led to the discovery of the

narcotics, which formed the basis for the charged offenses. Defendant maintains

that the search warrant was based wholly upon the alleged controlled buy that

occurred between himself and the CI and that the buy was not directly witnessed

by any police officer or otherwise corroborated. Accordingly, defendant concludes

the credibility of the CI was integral to the State’s case and without means to

confront the CI or assess his credibility, the State was permitted to circumvent

constitutional safeguards to obtain the convictions against defendant.

As previously noted, a suppression hearing was held prior to trial. During

that hearing, Detective Whittington testified that he was initially contacted by

defendant’s parole officer regarding suspicious activity recorded by defendant’s

electronic tracking device. Narcotics officers conducted brief surveillance of

defendant but did not observe illegal activity. Detective Whittington recalled that a

short time later he received information from a CI that defendant was “distributing

quantities of heroin throughout Metairie.” According to Detective Whittington, he

had worked with the CI in the past and confirmed that the CI had previously

proven reliable, having provided information on prior occasions that led to arrests

and narcotics seizures. The CI further informed Detective Whittington of the

specific type of vehicle defendant drove and where he was residing. The CI

indicated that he/she was in a position to purchase a quantity of heroin from

defendant, so Detective Whittington set up the CI to conduct a controlled buy.

Detective Whittington explained that after setting up surveillance on

defendant’s residence, defendant was observed leaving the premises in the vehicle

described by the CI. Then, after following defendant to the pre-determined

location, the CI met with defendant and obtained a quantity of heroin, which the CI

18-KA-717 13

then relinquished to Detective Whittington. Detective Whittington testified that he

searched the CI both before and after the controlled buy to ensure the CI was not in

possession of any illegal items. The detective was also able to continuously view

the CI from the time the CI left him until the time the CI met with defendant,

noting that the CI did not interact with any other person.

After the controlled buy, the CI contacted Detective Whittington to provide

him with defendant’s address while other officers from the team followed

defendant back to his residence. In the meantime, Detective Whittington obtained

a search warrant for defendant’s residence and vehicle. During the execution of

the warrant, narcotics were found buried in defendant’s backyard in a location

where the CI, who was familiar with defendant’s home, had indicated the

contraband had been located.

On cross-examination, defense counsel asked Detective Whittington how

much money was given to the CI to use during the controlled buy. Detective

Whittington stated that such information would reveal the identity of the

informant; thus, he was instructed by the trial court not to answer. Defense

counsel then indicated that he would be filing a motion for in camera inspection

requesting the trial judge to meet with the CI and engage in a colloquy with

him/her about the information he/she provided to Detective Whittington so as to

determine his/her credibility and/or existence.

Accordingly, after the trial court’s ruling denying the motions to suppress,

defendant filed a motion for in camera inspection to determine the reliability of the

CI. The defendant filed a pro se motion to reveal the identity of the CI, asserting

that the CI participated in the alleged criminal transaction and that non-disclosure

of the CI’s identity would deny him his constitutional rights of confrontation and

compulsory process.

18-KA-717 14

At the hearing on these motions, the State argued there was no basis to

disclose the identity of the CI in this case. It noted that defendant was not charged

with distribution of the narcotics sold to the CI during the controlled buy, and that

as a result, there existed no exceptional circumstances warranting the exposure of

the CI’s identity or for an in camera inspection to test the CI’s credibility.

In response, defendant maintained that the CI played a crucial role in the

case and admitted that while defendant was not charged with the offense of

distribution of the narcotics to the CI, the controlled buy between defendant and

the CI formed the basis for the search warrant. Accordingly, defendant argued an

in camera inspection should be conducted with the CI to gauge the CI’s credibility.

Defendant averred that if the trial court were to engage in a colloquy with the CI, it

could determine whether the CI was truthful and whether a controlled buy had, in

fact, taken place. The trial court denied the motion to disclose the identity of the

CI and defendant’s request for an in camera inspection.

Absent exceptional circumstances, a confidential informant’s identity is

strictly privileged. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d

639 (1957); State v. Oliver, 430 So.2d 650, 652-53 (La. 1983), cert. denied, 464

U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983); State v. Clark, 05-61 (La. App. 5

Cir. 6/28/05), 909 So.2d 1007, 1014 n.18, writ denied, 05-2119 (La. 3/17/06), 925

So.2d 538 (citing State v. Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, 815,

cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000)). Established

jurisprudence recognizes the “informer’s privilege,” which allows the state to

withhold the identity of those who furnish information of illegal activities to law

enforcement officers. Roviaro, 353 U.S. at 59, 77 S.Ct. at 627; State v. Davis, 411

So.2d 434, 436 (La. 1982); see also La. C.E. art. 514.7 This privilege is founded

7
La. C.E. art. 514(A), pertinent to the issues presented herein, provides:

18-KA-717 15

upon public policy and seeks to further and protect the public interest and law

enforcement by encouraging people to supply information to the police by

protecting their anonymity. Clark, 909 So.2d at 1014-15, 1015 n.19 (citing

Roviaro, 353 U.S. at 59, 77 S.Ct. at 627).

However, exceptions to this privilege exist. See La. C.E. art. 514(C).8 The

identity of an informant should be made known to the accused only when his right

to prepare his defense outweighs the need for protection of the flow of information.

Clark, 909 So.2d at 1015 n.20 (citing State v. Zapata, 97-1230 (La. App. 5 Cir.

5/27/98), 713 So.2d 1152, 1158, writ denied, 98-1766 (La. 11/6/98), 727 So.2d

443). The burden is on the defendant to show exceptional circumstances

warranting disclosure of the name of a confidential informant. Clark, 909 So.2d at

1015. The trial court is vested with great discretion in determining when

circumstances warrant disclosure. Id.; Scher v. United States, 305 U.S. 251, 254,

59 S.Ct. 174, 176, 83 L.Ed. 151 (1938).

Only when an informant has played a crucial role in the criminal transaction

and when he alone can give testimony necessary to insure a fair trial, must the trial

court order disclosure of his identity. State v. Coleman, 97-2802 (La. 4/24/98),

713 So.2d 440, 441-42; State v. Dotson, 256 So.2d 594, 599-600 (La. 1971), cert.

denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972). Conversely, when an

informant only supplies information, and does not participate in the transaction,

disclosure is not warranted. Clark, 909 So.2d at 1015, n.24 (citing Zapata, supra).

In Clark, supra, the trial court denied the defendant’s pretrial motion to

reveal the identity of the informant. This Court found that the trial court had not

The United States, a state, or subdivision thereof has a privilege to refuse to disclose, and
to protect another from required disclosure of, the identity of a person who has furnished
information in order to assist in an investigation of a possible violation of a criminal law.
8
La. C.E. art. 514(C)(3) states that no privilege shall be recognized if “[t]he party seeking to overcome
the privilege clearly demonstrates that the interest of the government in preventing disclosure is
substantially outweighed by exceptional circumstances such that the informer’s testimony is essential to
the preparation of the defense or to a fair determination on the issue of guilt or innocence.”

18-KA-717 16

erred in denying the motion because although the CI’s drug purchase supplied the

probable cause necessary to obtain the search warrant, the informant’s participation

was not integral to the transaction (i.e., the search) that uncovered the cocaine that

was the basis for the instant charge. This Court explained that the defendant was

not charged with the distribution of the cocaine to the CI but with possession of

cocaine with intent to distribute that occurred on a later date.

In State v. Smith, 09-259 (La. App. 5 Cir. 11/24/09), 28 So.3d 1092, writ

denied, 10-1414 (La. 6/24/11), 64 So.3d 212, the defendant argued on appeal that

the trial court erred in restricting his ability to test the affidavit of the search

warrant, which he alleged relied exclusively upon the credibility of an informant.

He further argued that in order to test the affidavit, it was essential to test the

informant’s credibility, thus, concluding that the trial court’s failure to order

disclosure of the informant’s identity based on the exceptional facts of the case was

error. This Court disagreed, noting that the affiant of the probable cause affidavit

and search warrant had observed the transaction between the defendant and the CI

firsthand. Further, this Court found the defendant did not present exceptional

circumstances requiring disclosure, explaining that the cocaine found when the

search warrant was executed, and not the evidence seized from the controlled buy

between the defendant and the CI, formed the basis for the charged offense. This

Court also noted that while the CI was a source of the basis of the probable cause

required for the search warrant, that fact did not, in and of itself, require disclosure

of the informant’s identity. Accordingly, this Court concluded the CI did not play

a crucial role in the transaction that led to the defendant’s arrest because he played

no part in the execution of the search warrant and the search of the defendant’s

person.

Finally, in State v. Baker, 15-401 (La. App. 5 Cir. 11/19/15), 179 So.3d 895,

writ denied, 15-2350 (La. 4/22/16), 191 So.3d 1046, the defendant argued on

18-KA-717 17

appeal that the trial court erred in not revealing the identity of the CI who

participated in a hand-to-hand transaction with the defendant days before his arrest.

This Court found the defendant failed to show that he was entitled to know the

identity of the CI and that the charges in the case were based on the evidence found

when the officers arrested the defendant on his outstanding attachments, not on the

evidence seized from the controlled buy between the defendant and the CI. This

Court further noted that the officer testified that he personally observed the

controlled buy between the informant and the defendant.

Based on the foregoing, we find that the trial court did not err in finding that

the defendant was not entitled to know the identity of the CI, even though the CI

was a source of the basis of the probable cause required for the search warrant.

The charges in this case were based on the narcotics found when the search

warrant was executed and not based on the evidence seized from the controlled buy

between defendant and the CI. Here, the CI did not play a crucial role in the

transaction that led to defendant’s arrest because the CI played no part in the

execution of the search warrant. Accordingly, defendant has not presented

exceptional circumstances that required disclosure of the CI’s identity, and as such,

the trial judge did not err in disallowing the disclosure of the CI’s identity.

Further, we find no basis in the law for defendant’s motion to conduct an in

camera inspection with the CI to ascertain the CI’s reliability. While the in

camera inspection of certain documents have been ordered under certain

circumstances involving privileged information,9 we find the in camera inspection

of a CI to be outside the scope of what defendant is entitled to under the rules of

criminal procedure. No jurisprudence could be located and defendant fails to cite

to any case where the CI was produced for an in camera interview with the trial

9
See State v. Cobb, 419 So.2d 1237 (La. 1982); State v. Perkins, 03-1680 (La. 6/27/03), 852 So.2d 989;
State v. Smith, 01-1027 (La. App. 1 Cir. 2/15/02), 809 So.2d 556; State v. Berry, 95 1610 (La. App. 1 Cir.
11/8/96), 684 So.2d 439, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603.

18-KA-717 18

court in order to verify his/her credibility. Accordingly, the trial court did not

abuse its discretion in denying defendant’s motion for an in camera inspection to

independently ascertain the reliability of the CI.

In his final counseled assignment of error, defendant avers that the evidence

was insufficient to support his misdemeanor charge of resisting an officer when

there was no evidence presented that he was informed he was under arrest prior to

his “fleeing.”10

Our review of the record on appeal reveals that our appellate jurisdiction

does not extend to this matter. Here, defendant was charged in a separate bill of

information with a misdemeanor offense distinct from his felony charges.

Specifically, defendant’s felony offenses were assigned district court case number

16-6969, while defendant’s misdemeanor offense of resisting an officer was

assigned district court case number 16-7309. Further, although defendant’s felony

and misdemeanor offenses were tried together in a bench trial, the record on appeal

does not contain defendant’s misdemeanor case. Additionally, the motions for

appeal contained in the record mention only the felony convictions and were filed

listing the felony case number only.11

This Court’s appellate jurisdiction extends only to cases that are triable by a

jury. State v. Chess, 00-164 (La. App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287

(citing La. Const. of 1974, art. 5 § 10; La. C.Cr.P. art. 912.1). Unless the

punishment that may be imposed exceeds six months imprisonment, a

misdemeanor is not triable by a jury. Chess, supra (citing La. Const. of 1974, art.

1 § 17; La. C.Cr.P. art. 779; State v. Robinson, 94-864 (La. App. 5 Cir. 3/15/95),

10
The proper procedure for seeking review of a misdemeanor conviction is an application for writ of
review seeking exercise of this Court’s supervisory jurisdiction. La. C.Cr. P. art. 912.1(C)(1).
11
The substance of both motions for appeal was general in nature; however, the orders regarding the
motions summarized the case as follows: “defendant was found guilty on April 18, 2018 and sentenced on
May 22, 2018 for drug offenses and to being a second time felony offender.” The motion did not refer to
defendant’s misdemeanor conviction.

18-KA-717 19

653 So.2d 669, 670). Here, defendant’s offense of resisting an officer was

punishable by a fine of not more than five hundred dollars or imprisonment for not

more than six months, or both. See La. R.S. 14:108(C). It is, thus, not triable by a

jury. As the misdemeanor conviction was not triable by a jury, our appellate

jurisdiction does not extend to this matter. Accordingly, this assignment of error is

not before us.

Errors Patent

Finally, as is our routine practice, we have reviewed the record for errors

patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.

1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). We find no

errors requiring corrective action.

Conclusion

For the foregoing reasons, we affirm all five of defendant’s narcotics

convictions - including possession of cocaine between twenty-eight and two-

hundred grams; possession with intent to distribute methamphetamine; possession

with intent to distribute heroin; possession of Tramadol; and possession of

Diazepam – and defendant’s original sentences; defendant’s second felony

offender adjudication and enhanced sentence.

AFFIRMED.

18-KA-717 20

SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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SEPTEMBER 4, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

18-KA-717
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
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