State of Louisiana v. Ishmel Joel Ennis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1491

STATE OF LOUISIANA

VERSUS

ISHMEL JOEL ENNIS

**********

APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NUMBER CR-4580-00-1
HONORABLE WENDELL R. MILLER, DISTRICT JUDGE

**********

BILLIE COLOMBARO WOODARD
JUDGE

**********

Court composed of Sylvia R. Cooks, Billie Colombaro Woodard, and Marc T. Amy,
Judges.

AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.

COOKS, J., concurs in part, dissents in part and assigns written reasons.

Mr. Bennett R. LaPoint, Assistant District Attorney
Michael Cade Cassidy, District Attorney
Jefferson Davis Parish
Post Office Box 1388
Jennings, Louisiana 70546
(337) 824-1893
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Charles Gary Wainwright
2739 Tulane Avenue
New Orleans, Louisiana 70119
(504) 827-9900
COUNSEL FOR DEFENDANT/APPELLANT:
Ishmel Joel Ennis

WOODARD, Judge.

The Defendant appeals his conviction for possession of 400, or more, grams
of cocaine. For the following reasons, we affirm his conviction, amend his sentence,
and remand the case to the trial court with instructions to amend the minutes of
sentencing.

*****
On June 26, 2000, the Defendant, Mr. Ishmel Joel Ennis, and his passenger,
Mr. Eric Lamont Summers, were driving on Interstate 10 in Jefferson Davis Parish
when Officer Arthur Phillips pulled them over for an alleged traffic violation. After
obtaining a written consent to search the vehicle, Officer Phillips and Deputy Monty
Kirk Chevallier, who came to the scene to assist, discovered cocaine hidden under the
vehicle’s hood. They arrested both men. Officer Phillips’ police car video camera
recorded the search and arrests.
The State charged Mr. Ennis with possession of over four hundred grams of
cocaine in violation of La.R.S. 40:967(C) and (F). A jury found him guilty. The trial
court sentenced him to thirty years at hard labor, with at least fifteen years to be
served without parole, along with a two-hundred-fifty-thousand-dollar fine. He seeks
review of his conviction.

ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, we review all appeals for errors
patent on the face of the record. After reviewing the record, we find two.
First, the trial court imposed sentence immediately after denying Mr. Ennis’
“Motion for Post Verdict Judgment of Acquittal and/or Motion for a New Trial,”
despite La.Code Crim.P. art. 873's requirement that it delay sentencing for twenty-
four hours after denying a motion for new trial. Nonetheless, Mr. Ennis neither
challenges his sentence nor alleges any prejudice because of the lack of a delay.
Accordingly, we find the error harmless.1

1
See State v. Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103.

1

However, the trial court imposed sentence under the version of La.R.S.
40:967(F)(1)(c) in effect at the time of trial rather than at the time of the offense. At
the time of the offense, the statute provided for a minimum term of imprisonment of
thirty years at hard labor, with a maximum term of sixty years. However, by the time
of trial, the legislature had amended the statute, decreasing the minimum sentence to
fifteen years at hard labor with a maximum of thirty years.
Thus, the trial court imposed a thirty-year sentence, at which time, the
prosecutor informed the court that by statute “at least the first fifteen (15) years of the
sentence are without benefit of parole,” to which the trial court responded, “[t]hat is
correct. I think the statute provides for that.” Louisiana Revised Statute 40:967(G)
mandates that the minimum sentence for possession of cocaine weighing 400 grams
or more be served without benefit of parole. However, since the minimum sentence
at the time of the offense was thirty years, Mr. Ennis’ sentence is illegally lenient, as
all thirty years should be without benefit of parole. Because the term of parole
ineligibility required in the present case is mandatory, leaving no discretion to the
trial court, we need not remand for sentencing. Rather, we amend the sentence to
reflect that the thirty years are without benefit of parole.
Additionally, the trial court ordered Mr. Ennis to pay a two-hundred-fifty-
thousand-dollar fine, but the minutes of sentencing do not reflect it. Thus, we remand
the case and order the trial court to amend the minutes of sentencing to correctly
reflect the imposition of the two-hundred-fifty-thousand-dollar fine.

MOTION TO SUPPRESS
Officer Phillips stopped Mr. Ennis’ vehicle for illegal lane usage because he
claimed he crossed the fog line. Mr. Ennis contends that the trial court erred in
denying his motion to suppress the evidence that the officers seized from his vehicle,
in which he argued the officers did not have probable cause for the stop and detained
him at the scene beyond the scope of a permissible traffic stop. However, this court
has already exercised supervisory jurisdiction and affirmed the trial court’s denial of
the motion in an unpublished writ opinion.2 Notwithstanding, we are not absolutely
precluded from reaching another conclusion on appeal, now having the benefit of

2
State v. Ennis, 02-467 (La.App. 3 Cir. 12/30/02).

2

additional evidence adduced at trial.3 “Nevertheless, judicial efficiency demands that
[we] accord great deference to [our] pretrial decisions on admissibility, unless it is
apparent, in light of the subsequent trial record, that the determination was patently
erroneous and produced an unjust result.”4
The only new evidence that Mr. Ennis offered at trial consisted of John Roger
Sutherland’s testimony. Sutherland, an expert in vehicle alignment, testified that he
examined Mr. Ennis’ vehicle and concluded that his front right tire could not have
crossed the fog line on the highway without his right rear tire also crossing the line.
Mr. Ennis offered Mr. Sutherland’s testimony in an attempt to diminish Officer
Phillips’ credibility and impeach his testimony that he pulled Mr. Ennis over when
his right front tire crossed the line. When asked if the right front tire, only, crossed
the line, Officer Phillips answered, “yes,” but we also recognize that Officer Phillips
repeatedly testified that he got behind Mr. Ennis’ vehicle, initially, because he was
riding the line, or straddling the line. This is consistent with the citation Officer
Phillips issued which lists the violation as “improper lane usage.”
Apparently, the jury did not find Mr. Sutherland’s testimony sufficient to cast
doubt on Officer Phillips’ credibility nor do we find it sufficient to render our
previous decision patently erroneous. Furthermore, Mr. Sutherland did not examine
the car until the day before trial and testified that he could not give an opinion about
the condition of the vehicle at the time of Mr. Ennis’ arrest, approximately three years
earlier.
Thus, we find no additional evidence in the record that would support a finding
that our prior decision was patently erroneous.

SUFFICIENCY OF EVIDENCE
Mr. Ennis contends that the verdict is contrary to the law because the evidence
was insufficient to convict him of possession of cocaine. “It is unlawful for any
person knowingly or intentionally to possess a controlled dangerous substance as
classified in Schedule II . . . .”5 “Cocaine is a Schedule II controlled dangerous

3
State v. Humphrey, on rehearing, 412 So.2d 507 (La.1981).
4
Id. at 523.
5
La.R.S. 40:967(C).

3

substance.”6 The State’s burden was to prove beyond a reasonable doubt that Mr.
Ennis possessed four hundred grams or more7 of cocaine and that he knowingly or
intentionally possessed it; in other words, that he had “guilty knowledge.”8

When the issue of sufficiency of the evidence is raised on appeal,
the critical inquiry of the reviewing court is whether, after 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 proven
beyond a reasonable doubt. It is the role of the fact finder to weigh the
respective credibility of the witnesses, and therefore the appellate court
should not second-guess the credibility determination of the trier of fact
beyond the sufficiency evaluations under the Jackson standard of
review.9

Possession
In the instant case, police officers found the cocaine, not on Mr. Ennis’ person,
but, rather, under the hood of his vehicle. However, if the cocaine was subject to his
dominion and control, he had constructive possession, which is sufficient to prove
this element of the offense.10 His passenger, Mr. Summers, testified that he did not
know there were drugs in the vehicle and that the drugs did not belong to him. Mr.
Ennis was driving the vehicle in which the cocaine was found. He admitted, and the
registration proved, that he, in fact, owned the vehicle. Thus, he possessed the
cocaine by exercising dominion and control over his vehicle.
Further, the State proved that Mr. Ennis possessed over four hundred grams of
cocaine by introducing into evidence the cocaine and the Southwest Louisiana
Criminalistics Laboratory’s uncontradicted report, stating that it was 446.91 grams
of cocaine. Further, the State traced the chain of custody of the cocaine through the
testimonies of Officer Phillips, Officer Chevallier, and two evidence custodians for
the Jefferson Davis Parish Sheriff’s Department, along with the evidence bag

6
La. R.S. 40:964.
7
La.R.S. 40:967(F)(1)(C).
8
State v. Jones, 94-1261 (La.App. 3 Cir. 5/17/95), 657 So.2d 262.
9
Id. at 268 (citations omitted).
10
State v. Sweeney, 443 So.2d 522 (La.1983).

4

containing the cocaine and the Department’s log book. While the defense raised
questions based on the illegibility of a number in one of the log book’s dates and the
fact that the records indicated that the cocaine was received in the evidence room at
the same time that Officer Phillips actually took possession of it at the time of the
stop, we cannot say that the jury was manifestly erroneous in finding that the State
met its burden of proving chain of custody of the cocaine by a preponderance of the
evidence.11

Guilty Knowledge
Both Mr. Ennis and Mr. Summers described the shopping trip in Houston from
which they were returning to New Orleans. Officer Phillips testified that when he
learned of their origination and destination, he grew suspicious because a lot of drug
dealers go to Houston to get narcotics.
Furthermore, both officers at the scene testified that they smelled cologne in
the car, although Officer Chevallier disagreed with Officer Phillips that a strong odor
of cologne emanated from Mr. Ennis, himself. Officer Phillips explained that he has
known drug traffickers to use cologne to mask the odor of narcotics. Both officers
testified to a strong scent of cologne under the hood and on a sweatshirt that
enveloped the cocaine. Additionally, the amount of drug contraband seized, which
is over 400 grams in the instant case, has some bearing on a defendant’s guilty
knowledge.12
Further, Deputy Daniel Semmes, who interviewed Mr. Ennis a few days after
his arrest, explained that his follow-up investigation revealed that Mr. Ennis had
ninety thousand dollars in certificates in his savings account, which was suspicious,
considering that he was arrested with a quantity of cocaine.
Officer Phillips testified that when Mr. Ennis was arrested, he said his life was
over and indicated he was a third offender. Mr. Ennis denied making this statement
but admitted that he had been convicted twice before, each time for possession of one
piece of crack cocaine. Likewise, Deputy Semmes testified that Mr. Ennis said he
was a “three-time loser.”

11
See State v. Sharp, 414 So.2d 752 (La.1982).
12
Jones, 657 So.2d 262.

5

This conflicting testimony presented a question of credibility which the jury
apparently resolved in the officers’ favor. We “should not second-guess the
credibility determination of the trier of fact beyond the sufficiency evaluations under
the Jackson standard of review.”13 Additionally, the jury had the opportunity to
observe Mr. Ennis’ conduct and behavior when he testified in his own defense and
when they viewed the video tape of the stop, even though the audio was inadvertently
switched off a couple of times and outside noise diminished the audio at times, as
well.

MOTION TO RECUSE

Mr. Ennis contends that the trial court incorrectly denied his motion to recuse
the District Attorney’s Office. He advanced two different theories to justify recusal,
one concerning Assistant District Attorney, Mr. Bennett LaPoint; the other concerned
Assistant District Attorney, Mr. Richard Arceneaux.
He alleged that Mr. LaPoint had a personal interest in the outcome of the case
which conflicted with a fair and impartial administration of justice, requiring recusal
under La.Code Crim.P. art. 680(1). This court, exercising supervisory jurisdiction,
has already affirmed the trial court’s denial of recusal on this basis in an unpublished
writ opinion.14 This does not preclude reconsideration on appeal, but we are required
to give “great deference to [our] pretrial decision unless it is apparent that the
determination was patently erroneous and produced unjust results.”15
Mr. Ennis claimed that when Detective Semmes conducted his follow-up
investigation on him, he obtained information concerning the lien on his vehicle, over
the telephone, from the president of the New Orleans Municipal Employees Credit
Union (NOME). He further asserts that because of Detective Semmes’ discussion
with NOME’s president, NOME used pledged funds to pay off the vehicle, cancelling
the loan and removing the lien. Mr. Ennis alleges that Detective Semmes, first,
obtained this information and counseled NOME’s president to take action to clear the

13
Id. at 268.
14
State v. Ennis, 03-040 (La.App. 3 Cir. 1/14/03).
15
State v. Guillory, 97-179, p. 15 (La.App. 3 Cir. 3/11/98), 715 So.2d 400, 410,
writ denied, 98-955 (La.10/9/98), 726 So.2d 17.

6

vehicle’s title and, subsequently, obtained a subpoena deuces tecum for NOME’s
records so that the title would be clear of the lien when NOME produced the
documents in response to the subpoena. He adds that once it was obtained, this
subpoena was faxed rather than properly served on NOME. Mr. Ennis has instituted
a civil suit based on these allegations.
We agree with the trial court that NOME’s alleged improper release of
information is best addressed in the civil suit. It does not prove that Mr. LaPoint has
any personal interest in the case which biases him against Mr. Ennis.
The only allegation against Mr. LaPoint is that he knew Detective Semmes had
received this information from NOME and, subsequently, issued the subpoena,
anyway. Mr. Ennis asserts that Mr. LaPoint has a personal interest in the outcome of
this case because the funds that would be gained from the seizure and sale of his
vehicle would be distributed among certain agencies, including Mr. LaPoint’s office.
However, the forfeiture is a separate proceeding, unrelated to Mr. Ennis’ criminal
case. And as the trial court pointed out, “the fact that there’s a forfeiture proceeding
if that forms a basis for a recusal then there would be a recusal every time a forfeiture
proceeding was initiated.” We agree. The opportunity to receive proceeds from a
sale arises in every forfeiture proceeding. It does not demonstrate any personal bias
Mr. LaPoint has toward Mr. Ennis.
Mr. Ennis, also, argued that La.Code Crim.P. art. 680(3) required recusal
because “Mr. Arceneaux consulted with Ennis and then switched sides.” Louisiana
Code of Criminal Procedure Article 680(3) requires recusal when a district attorney
“[h]as been employed or consulted in the case as attorney for the defendant before his
election or appointment as district attorney.”
At trial, Mr. Ennis proffered Mr. Arceneaux’s testimony, explaining that he
represented Mr. Ennis’ co-defendant Eric Summers until he was hired by the District
Attorney’s Office. Mr. Arceneaux consulted with Mr. Summers, in Mr. Ennis’
presence, and responded to a question Mr. Ennis asked him; however, Mr. LaPoint
handled Mr. Ennis’ prosecution and Mr. Ennis has failed to allege how he was
prejudiced by Mr. Arceneaux’s employment as an assistant district attorney or that
Mr. LaPoint based its prosecution on any knowledge acquired through Mr.
Arceneaux’s prior consultation.

7

Accordingly, the trial court properly denied Mr. Ennis’ motion to recuse the
District Attorney’s Office.

MISTRIAL
Mr. Ennis contends the trial court erred when it failed to declare a mistrial after
learning that someone in the jury pool was an undercover narcotics agent. Someone
in the jury pool, upon seating the second panel of prospective jurors, informed the
trial judge that he needed to talk to the judge “for reasons I can’t publically [sic] say.”
Shortly thereafter, he approached the bench and spoke to the judge. The trial court
held a bench conference and informed both counsel for the State and the Defendant
that the prospective juror had done work as an undercover narcotics agent.
The State challenged him for cause, but defense counsel objected to dismissing
him without further questioning to elicit details and to prove that he was an
undercover agent. The State then exercised a peremptory challenge, and the trial
court excused him.

La.C.Cr.P. art. 775 requires a mistrial on motion of the defense
when “prejudicial conduct inside or outside the courtroom makes it
impossible for the defendant to receive a fair trial.” However, mistrial
is a drastic remedy that is warranted only when the defendant has
suffered substantial prejudice such that he cannot receive a fair trial. The
determination of whether actual prejudice has occurred lies within the
sound discretion of the trial judge, and this decision will not be
overturned on appeal absent an abuse of that discretion.16

Apparently, defense counsel was concerned about possible conversations the
agent may have had with other prospective jurors. However, defense counsel did not
base his motion for a mistrial on this concern but commented about it after his motion
was denied. Further, defense counsel neither offered evidence, nor alleged how the
agent’s presence during jury selection had prejudiced the Defendant. Additionally,
the State used a peremptory challenge against the agent. Accordingly, this
assignment of error lacks merit.

16
State v. Clark, 02-1463, p. 31 (La. 6/27/03), 851 So.2d 1055, 1079, cert.
denied, __ U.S. __, 124 S.Ct. 1433(2004) (citations omitted).

8

JURY SELECTION
Mr. Ennis contends the trial court committed reversible error when it denied
his challenge for cause of a prospective juror, Ms. Judy Landry. During voir dire, Ms.
Landry informed the court that her husband, two brothers, and a cousin worked at the
Jefferson Davis Parish Sheriff’s Department. The Defendant challenged Ms. Landry
for cause based on her association with law enforcement, but the trial court denied the
challenge.
“To prove there has been reversible error warranting a reversal of the
conviction and sentence, the defendant need only show: (1) the erroneous denial of
a challenge for cause; and (2) the use of all his peremptory challenges.”17
Mr. Ennis contends in brief to this court that he exhausted all his peremptory
challenges. However, a review of the record indicates he used eleven peremptory
challenges while empaneling the twelve member jury. After the twelfth juror was
seated, the court asked if he would like to use his last peremptory challenge to
backstrike anyone. Defense counsel indicated he did not and said he would save his
last peremptory challenge. The court then informed the attorneys that it would
proceed to seat one alternate juror and each side would have one peremptory
challenge to use during selection of an alternate juror. The Defendant used his
peremptory challenge against the first alternate.
Pursuant to La.Code Crim.P. art. 789, “[t]he regular peremptory challenges
allowed by law shall not be used against [] alternate jurors.” Thus, defense counsel
did not exhaust his peremptory challenges. Additionally, the Defendant has not
alleged he suffered prejudice because of the trial court’s denial of his challenge for
cause against Ms. Landry.
Accordingly, there is no merit to this argument.

CONCLUSION

We find no merit to any of Ennis’ arguments; therefore, we affirm his
conviction. We amend his sentence to thirty years at hard labor, the entirety of which
is without benefit of parole. Further, we remand the case and instruct the trial court

17
State v. Taylor, 99-1311, p. 6 (La. 1/17/01), 781 So.2d 1205, 1213, cert.
denied, 534 U.S. 844, 122 S.Ct. 106 (2001) (citations omitted).

9

to amend the minutes of sentencing to correctly reflect the imposition of a two-
hundred-fifty-thousand-dollar fine.

AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.

10

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-1491

STATE OF LOUISIANA

VERSUS

ISHMEL JOEL ENNIS

COOKS, J., concurs in part, dissents in part.

I disagree with the portion of the opinion directing that the sentence be

corrected to require all thirty years be served without the benefit of parole. The trial

judge is not powerless to deviate from the mandatory minimum if he deems it

excessive as applied to this particular defendant. The trial judge need only articulate

a basis for the deviation. State v. Lindsey, 1999-3302 (La. 10/17/00), 770 So. 2d 339.

The case should be remanded to the trial court to correct the sentence as statutorily

required or to articulate reasons for the downward deviation. In all other respects, I

agree with the majority opinion.