State of Louisiana v. John M. Benedict

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 04-742

STATE OF LOUISIANA

VERSUS

JOHN M. BENEDICT

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 2003
HONORABLE ALLEN A. KRAKE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Oswald A. Decuir,
Judges.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

Karen G. Arena
Louisiana Appellate Project
110 Veterans Blvd., #222
M etairie, LA 70005
(504) 828-6870
Counsel for: Defendant/Appellant
John M . Benedict

James D. W hite Jr.
Assistant District Attorney
P. O. Box 1652
M onroe, LA 71210
Counsel for: Plaintiff/Appellee
State of Louisiana

Honorable James Patrick Lemoine
Assistant District Attorney, 35th Judicial Dist.
P. O. Box 309
Colfax, LA 71417
(318) 627-2971
Counsel for: Plaintiff/Appellee
State of Louisiana

John M . Benedict
Rapides Detention Ctr. F-Dorm
7400 Academy Drive
Alexandria, LA 71303-3728

SAUNDERS, J.

On March 26, 2003, the Grant Parish District Attorney’s Office filed a bill of

information charging Defendant John Benedict with four separate charges related to

the manufacture and distribution of methamphetamine, a violation of La.R.S. 40:967

and 40:964 (Schedule II). There was also a fifth charge related to the possession of

hydrocodone, a violation of La.R.S. 40:968 and 40:964 (Schedule III). However, on

August 25, 2003, the State filed an amended bill containing a total of four charges:

1. Manufacture of Methamphetamine, a violation of La.R.S.
40:967(A)(1) and 40:964 (Schedule II);

2. Conspiracy to Manufacture Methamphetamine, a violation of La.
R.S. 14:26, 40:967, and 40:964 (Schedule II);

3. Possession with Intent to Distribute Methamphetamine, a violation
of La.R.S. 40:967(A)(1) and 40:964 (Schedule II);

4. Possession of Dihydrocodeinone (Hydrocodone), a violation of
La.R.S. 40:968(C) and 40:964 (Schedule III).

Subsequently, Defendant rejected a plea offer and jury selection began on

August 26, 2003. On August 28, the jury found Defendant guilty of all charges.

Thereafter, on September 18, 2003, the State filed a “Habitual Offender Bill of

Information” alleging Defendant to be a second habitual offender. On December 4,

the lower court conducted a hearing on the matter, adjudicated Defendant as a

habitual offender and imposed sentences on all counts.

FACTS:

On the night of January 22, 2003, law enforcement officers raided two trailers

in Grant Parish. Initially, officers observed one man standing in front of one of the

trailers and Defendant running toward a shed. Officers located and arrested

Defendant inside the shed at which time he became cooperative and confessed to

manufacturing methamphetamine. He had two small bags of the drug and a

hydrocodone pill in his pocket. As officers searched the scene, they found equipment

and various utensils consistent with the manufacture of methamphetamine and

recovered a total of fourteen grams of the drug. Police also arrested the first man

observed at the scene, Ray Evans, who later pled guilty and appeared as a State

witness at Defendant’s trial.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find several

errors patent involving the sentences imposed. One of the errors has been raised and

is discussed in Assignment of Errors Numbers 2 and 3. That error requires that the

habitual offender adjudication and sentences imposed on all four counts be vacated.

Thus, the remaining errors patent, also involving the sentences imposed, are rendered

moot. We will, however, briefly discuss the remaining errors patent.

First, it appears the trial court ordered all sentences to be served without benefit

of parole, probation or suspension of sentence. Although Section G of the habitual

offender statute requires all enhanced sentences to be imposed without benefit of

probation or suspension of sentence, it does not authorize the trial court to impose

enhanced sentences without benefit of parole. La.R.S. 15:529.1(G). Furthermore, the

penalty provisions for counts three (possession with the intent to distribute

methamphetamine) and four (possession of dihydrocodeinone) do not authorize the

trial court to impose any portion of the sentence without benefit of parole. La.R.S.

40:967(B)(1) and La.R.S. 40:968(C). Thus, the trial court improperly denied parole

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eligibility on those counts. It should refer to the “reference statutes” themselves to

determine whether parole may be restricted.

Additionally, we find that the trial court improperly denied good time

eligibility. According to the supreme court, “a trial judge lacks authority under

La.R.S. 15:571.3(C) to deny a defendant eligibility for good time credits against his

sentence, because that statute is ‘directed to the Department of Corrections

exclusively.’” State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 714 So.2d 698, 699,

citing State ex rel. Simmons v. Stalder, 93-1852 (La. 1/6/96), 666 So.2d 661.

ASSIGNMENTS OF ERROR:

1. The evidence is insufficient to sustain the verdict as to possession with intent
to distribute methamphetamine.

2. The multiple bill of information and the adjudication are null and void because
neither specify the offense for which Mr. Benedict is to be adjudicated.

3. The trial court erred in failing to consider Mr. Benedict’s motion to reconsider
sentence, which was timely filed.

PRO SE ASSIGNMENT OF ERRORS

1. Was the defense counsel ineffective in not introducing facts and evidence that
would have exculpated the defendant, specifically the fact that the defendant had
sustained a gunshot wound to his hand the day prior to the arrest?

2. Was the jury selection process tainted?

3. Was the testimony of the State’s witness Ray Evans credible/Was the defense
counsel’s representation of Ray Evans a conflict of interest?

4. Was the testimony of the State’s expert witnesses credible?

5. Was the defense counsel ineffective for not filing a motion to hire expert
witnesses?

6. Was the defense counsel ineffective for not making an opening statement?

7. Was the defense counsel ineffective for not making a case in defense?

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8. Was the defendant prejudiced by being sentenced by a different judge than the one
who presided over the trial?

9. Was the chain of evidence regarding the alleged methamphetamine seized from
the defendant incomplete?

10. Was the sentence that the defendant received constitutionally excessive?

ASSIGNMENT OF ERROR NO. 1:

In his first assignment, Defendant argues the evidence was insufficient to

support his conviction for possession of methamphetamine with intent to distribute.

While he acknowledges the police found items consistent with manufacturing

methamphetamine, he argues they found none “consistent with individual packaging.”

As the State points out in its brief, this is the only one of four convictions that

Defendant challenges on appeal.

This court has explained the basic analysis for challenges to the sufficiency of

trial evidence:

When the issue of sufficiency of 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody,
393 So.2d 1212 (La.1981).

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant was convicted pursuant to La.R.S. 40:967, which states in pertinent

part:

A. Manufacture; distribution. . . . [I]t shall be unlawful for any
person knowingly or intentionally:

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(1) To produce, manufacture, distribute, or dispense or possess
with intent to produce, manufacture, distribute, or dispense, a controlled
dangerous substance or controlled substance analogue classified in
Schedule II;

Both parties acknowledge that the particular question of proof of intent to

distribute is analyzed by way of the so-called “House factors,” as set forth in the

jurisprudence. This court has explained:

Defendant argues that the State failed to present any evidence of
an offense other than possession of cocaine. Defendant relies upon
factors outlined in State v. House, 325 So.2d 222 (La.1975) to draw this
conclusion. In House, the supreme court found that the State had not
proven the defendant's intent to distribute marijuana because it had not
offered evidence:

(1) that the defendant ever distributed or attempted to
distribute any marijuana; (2) that the marijuana was in a
form usually associated with marijuana possessed for
distribution to others; (3) that the amount was such as to
create a presumption of intent to distribute; (4) of expert
or other testimony that such an amount as found on the
defendant is inconsistent with personal use only; and (5)
of any paraphernalia, such as baggies or scales, evidencing
an intent to distribute.

Id. at 225. State v. Wells, 99-628, p. 3 (La.App. 3 Cir. 12/22/99), 755 So.2d 963, 966,

writ denied, 00-181 (La. 9/15/00), 767 So.2d 39. The State relies on four major

factors in support of its case.

First, Ray Evans testified that, a short time before police arrived, Defendant

gave him some methamphetamine “kind of” in exchange for letting Defendant use the

property for his methamphetamine operation. This testimony indicates a

“distribution” within the language of La.R.S. 40:961(14). Second, Sergeant Timothy

Ledet of the Louisiana State Police, accepted as an expert, testified that users

normally possess one or two grams at a time. He also testified that the street value

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of one gram of methamphetamine is one-hundred dollars. Third, testimony from

Michael Nugent, a state police narcotics officer, and from Alex King, a drug analyst,

demonstrated that police seized at least fourteen grams of methamphetamine at the

scene. Besides this seizure, King testified that substances contained in two vials

tested positive for methamphetamine. While he did not testify regarding the weight

or volume of the methamphetamine in the vials, it appears they contained amounts in

addition to the fourteen grams already identified. Fourth, as already noted, six grams

of the methamphetamine seized were contained in two plastic bags found on

Defendant’s person.

A review of relevant jurisprudence reveals that courts treat an incident of actual

distribution as indicative of an intent to distribute. In State v. Hunt, 568 So.2d 1104

(La.App. 2 Cir. 1990), writ denied, 580 So.2d 914 (La.1991), one of the convictions

at issue was for possession of methamphetamine with intent to distribute. The court

discussed the House factors and observed that a witness testified the defendant had

given her some methamphetamine and paraphernalia on the date of the offense. The

court treated this testimony as direct evidence of both distribution and the intent to

distribute. Id.

Thus, the State in the present case showed an instance of actual distribution and

that Defendant had, on his person, an amount of methamphetamine inconsistent with

personal use. Given the testimony regarding the price of methamphetamine,

Defendant had six hundred dollars worth of the drug on his person and a total of at

least fourteen hundred dollars worth was found at the scene. Comparing the evidence

adduced to the House factors and viewing the evidence in the light most favorable to

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the prosecution, we find that the jury was not unreasonable in finding that Defendant

had the intent to distribute methamphetamine. For the reasons discussed, this

assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBERS 2 AND 3:

In these assignments, Defendant complains that, in the habitual offender bill,

the State failed to designate which one of the convictions the habitual offender

adjudication was applied to. In cases such as this, where several convictions arise out

of a single episode, the failure to designate which of the sentences is being enhanced

renders the sentences indeterminate. State v. Small, 37,134, pp. 11-12 (La.App. 2 Cir.

6/27/03), 850 So.2d 1019, 1026, writ denied, 03-2202 (La. 1/30/04), 865 So.2d 75.

Pursuant to Small and State v. Freeman, 00-238, p. 12 (La.App. 3 Cir. 10/11/00), 770

So.2d 482, 490, writ denied, 00-3101 (La. 10/5/01), 798 So.2d 963, the appropriate

remedy is to vacate the habitual adjudications and sentences and remand for further

proceedings. See also State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991).

Therefore, Defendant’s remaining assignment, which concerns the denial of his

motion to reconsider sentence, is moot.

PRO SE ASSIGNMENT OF ERRORS NOS. 1, 5, 6 & 7:

Defendant’s first, fifth, sixth and seventh assignments of error all allege that

his trial counsel was ineffective. Each of these assignments makes assertions related

to trial strategy and the interaction, or lack thereof, between Defendant and trial

counsel. We find the current record to be insufficient to support these assignments.

These issues would be better addressed in the post-conviction process. On

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application for post-conviction relief, the record can be more fully developed

regarding the issues Defendant seeks to raise. These assignments lack merit.

PRO SE ASSIGNMENT OF ERROR NO. 2:

In this assignment, Defendant alleges the jury selection process was tainted,

due to the use of an unsealed box. In the proceedings below, trial counsel cited

La.Code Crim.P. art. 408, which states, in pertinent part:

After the jury commission has selected the general venire, it shall
lock and seal the general venire box and deliver it to the clerk of court,
as the custodian thereof. Alternatively, the list of persons so selected
may be retained in a form suitable for use by a properly programmed
electronic device commonly known as a computer.

We also note La.Code Crim.P. art. 419, which may be more dispositive of the current

assignment. It states, in pertinent part:

A. A general venire, grand jury venire, or petit jury venire shall
not be set aside for any reason unless fraud has been practiced, some
great wrong committed that would work irreparable injury to the
defendant, or unless persons were systematically excluded from the
venires solely upon the basis of race.

When jury selection began, it quickly became apparent there was a defect in the

proceedings. The grand jury venire and petit jury venire lists were accidentally mixed

up. A short hearing was held to determine if the lists were tampered with in any

manner whatsoever. The testimony at that hearing indicated that the lists remained

in a sealed envelope.

Furthermore, Defendant does not allege that the venire was tampered with, but

argues he was prejudiced by the use of “an unsealed envelope and an unsealed box.”

Considering article 419, the lack of any allegation of tampering, and the testimony

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that the petit jury envelope was sealed, Defendant has failed to demonstrate any

prejudice or reversible error.

For the reasons discussed, this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 3:

In his third pro se assignment, Defendant alleges his trial counsel had a conflict

of interest because he also represented alleged co-conspirator Ray Evans, who

eventually confected a plea agreement with the State and testified against Defendant

at trial. The current record, however, does not indicate that Defense counsel also

represented Ray Evans, nor does it illustrate that he did not. Further, the charging

instruments in the current record indicate Defendant was billed alone and the minutes

do not address the proceedings against Evans. Thus, the State apparently proceeded

against Evans separately and any details of his case would be outside the current

record. Therefore, based on the record before us, we see nothing indicating that this

assignment has merit. This issue may be addressed in the post-conviction process,

where a record containing the relevant information can be developed.

PRO SE ASSIGNMENT OF ERROR NO. 4:

In this assignment, Defendant complains the State’s experts were not credible;

however, much of his argument concerns trial counsel’s alleged failure to attack the

credibility of each of the two experts. This portion of the assignment is an ineffective

assistance of counsel claim and, like his other ineffectiveness claims, is not supported

by the record before us. This issue may be addressed in the post-conviction process.

Another part of the assignment is Defendant’s claim that one of the experts

should not have been qualified as such because he was not formally trained regarding

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the “Nazi,” or “Birch,” method of methamphetamine manufacturing that was at issue

in this case. Defendant does not name the expert witness he is referring to, but the

context of his argument and related record page citation indicate that he is referring

to Sergeant Timothy Ledet of the Louisiana State Police.

Ledet testified that the bulk of his formal training addressed manufacturing

methods other than the Nazi method. However, he indicated that he had practical

experience with the latter method and was familiar with it. Ledet testified that he felt

more familiar with the Nazi method than with “Red P,” a method he was formally

schooled in. His testimony indicated the Nazi method is seen more in the field than

the Red P method is. Further, Ledet conducted informal classes on the Nazi method

for a state police troop.

It is well-settled that the decision to qualify an expert is within the discretion

of the trial court. Further, practical experience forms a sufficient basis to qualify a

witness as an expert, even in the absence of a formal, academic education. State v.

Wells, 99-628, (La.App. 3 Cir. 12/22/99), 755 So.2d 963, writ denied, 00-181(La.

9/15/00), 767 So.2d 39. In light of Wells, the trial court in the present case did not

abuse its discretion in accepting Ledet as an expert.

Defendant also complains that a second State expert was not credible, but he

does not name the expert and does not state why he was not credible. The other

expert qualified in this case was Alex King of the North Louisiana Criminalistics

Laboratory. The record, however, reveals that trial counsel stipulated to King’s

expertise. Thus, the issue was not preserved for review on appeal. Defendant also

complains that the police officers who testified at trial relied upon their memories

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without referring to any recorded material to refresh their memories of the arrest,

which occurred approximately a year before the trial. We note that it is common for

witnesses to rely upon their memories of events. In State v. Mitchell, 94-521(La.App.

3 Cir. 11/2/94), 649 So.2d 569, the defendant challenged an officer’s recollections

and identification of him as the offender. This court noted that credibility

assessments are squarely within the province of the fact-finder and affirmed the

conviction. Similarly, we reject Defendant’s argument here.

PRO SE ASSIGNMENT OF ERROR NO. 8:

In this assignment, Defendant argues it was improper for him to be sentenced

by a judge other than the one who presided over his trial. While we have already

decided to remand, we note that it is not improper for the sentencing judge and the

trial judge in a case to be two different people. As a practical matter, retirement,

death, or an election loss may sometimes necessitate such a situation. La.R.S.

13:4209, State v. Allo, 525 So.2d 664 (La.App. 5 Cir.), writ denied, 527 So.2d 976

(La.1988). Therefore, this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 9:

In this assignment, Defendant initially argues the chain of custody was not

complete for physical evidence that the State introduced at trial. He concedes,

however, that a continuous chain of custody is not essential, provided the evidence

as a whole demonstrates that the exhibit at issue was the same item originally seized

by authorities. Further, he concedes the evidence in the present case demonstrated

that the evidence originally seized was, more probably than not, the same evidence

presented at trial. He also acknowledges that a defect in the chain of custody goes to

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weight rather than admissibility. He argues, however, that the jury should have been

instructed regarding the “importance of the chain of custody for identification

procedures.”

Defendant cites no jurisprudence to support this proposition and our research

has revealed none. Further, during jury instructions, when the trial court explained

the use of exhibits, Defense counsel raised no objection and did not request the sort

of instruction that Defendant now seems to request. The lack of a contemporaneous

objection precludes Defendant from raising this issue on appeal. La.Code Crim.P. art.

841.

Defendant also claims that some of the photographs introduced at trial were

provided to Defense counsel only a day or two before trial; thus, counsel did not have

an opportunity to determine whether they had been retouched. At trial, Defense

counsel made essentially the same argument when objecting to a group of digital

photographs. We note, however, that a photograph is admissible when a witness, who

has personal knowledge of the item depicted, identifies it. State v. Leggett, 363 So.2d

434 (La.1978). In the present case, the items depicted in the contested photographs

were identified by Nugent. This assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 10:

In this assignment, Defendant claims his sentence is excessive. However, as

discussed earlier, under the counsel-filed assignments, Defendant’s sentence is

vacated and remanded due to other errors. Thus, the current assignment is moot.

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CONCLUSION:

Defendant’s convictions are affirmed. His habitual offender adjudications and

sentences, however, are vacated and the case is remanded for proceedings in

accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

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