State of Louisiana v. Todd Vincent Edwards

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 06-850

STATE OF LOUISIANA

VERSUS

TODD VINCENT EDWARDS

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 04-1111
HONORABLE LORI ANN LANDRY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Billy Howard Ezell, Judges.

VACATED AND REMANDED IN PART, AND REVERSED IN PART.

Laurie A. White
Laurie White & Associates, LLC
633 Carondelet Street
New Orleans, LA 70130
(504) 525-1020
Counsel for Defendant:
Todd Vincent Edwards

Jeffrey J. Trosclair
Assistant District Attorney
St. Mary parish Courthouse
Franklin, LA 70538
(337) 828-4100
Counsel for Plaintiff:
State of Louisiana

SAUNDERS, Judge.

On July 14, 2004, the Defendant, Todd Vincent Edwards, was charged by bill

of information with the following offenses: count one - possession of a controlled and

dangerous substance, Schedule II, more than 28 grams, but less than 200 grams,

within a drug-free zone, a violation of La.R.S. 40:967(F)(1)(a) and 40:981.3, as a

second or subsequent offender, having been previously convicted on February 1,

1993, in East Baton Rouge Parish, Docket No. 3-91-918, for possession of cocaine,

a violation of La.R.S. 40:982; and, count two - conducting a financial transaction

involving proceeds known to be derived from a violation of La.R.S. 40:966, et seq.,

a violation of La.R.S. 40:10491.

On August 9, 2004, the Defendant entered a plea of not guilty to the charges.

The Defendant then filed a motion to strike improper language from the bill of

information, which was subsequently denied on May 5, 2005. The same day, he filed

a motion to waive a trial by jury, which was granted, and a bench trial was held on

May 18, 2005, in which the Defendant was found guilty, as charged.

The Defendant subsequently filed a Motion for New Trial. However, his

motion was denied on December 12, 2005, and he was sentenced to serve ten years

at hard labor on count one, and five years at hard labor on count two, with credit for

time served awaiting disposition; the sentences were to run concurrently. The State

filed a multiple offender bill following sentencing. However, at the time of this

writing, no further action has been taken on the multiple offender bill. The Defendant

now appeals his convictions and sentences setting forth three assignments of error.

1
Currently a violation of La.R.S. 40:1041.

FACTS:

Detective Chad Hazelwood of the New Iberia Police Department received

information about the Defendant, a/k/a B.R. or Baton Rouge, from confidential

informants for about ten years which indicated that the Defendant was transporting

drugs from Baton Rouge, Louisiana to New Iberia, Louisiana for street sale. The

Defendant was the center of an investigation on May 22, 2004, and Detective

Hazelwood, along with Detective Barnett, were involved in a mobile surveillance

assigned to prosecute the Defendant. The detectives received information that the

Defendant had been conducting illegal narcotic activity at an abandoned residence

located at 506 Corrine Street. The area was known to have a high rate of drug

trafficking. Officer Scott Davis, a narcotics investigator, along with Sergeant

Adcock, devised a plan that involved several officers placed in different locations to

cover the area and wait for the Defendant’s arrival. Officer Davis was stationed in

the brush along Corrine Street, where he had a visual of the Defendant during the

operation. Detective Defelice was stationed in the grass behind the house.

After the Defendant arrived on the scene, Officer Davis and Detective Defelice

witnessed what appeared to be the Defendant making a few narcotics exchanges and

watched him store narcotics under the house and in the pipe of a metal clothesline.

As officers moved in on the scene, the Defendant initially fled, but then ran toward

Detective Hazelwood, who ordered him down to the ground and arrested him.

Approximately three hundred dollars were seized from the Defendant’s person;

however, no drugs or weapons were found on him. Officer Davis retrieved plastic

2

bags from inside a metal pipe and from underneath the residence, which were tested

and determined to both contain crack cocaine.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, the Defendant argues that he was denied his

right to due process of law, as there was insufficient evidence to support the guilty

verdict. As will be discussed below, there is an error patent in this case which will

require that the Defendant’s conviction for possession of more than 28 grams but less

than 200 grams of cocaine, second offense, be vacated and a conviction for

possession of more than 28 grams but less than 200 grams be entered. We will first

address the sufficiency of the evidence, as has been required by the supreme court,

even in situations where a reversible trial error exists:

The court of appeal reversed relator’s conviction of DWI, third
offense, based on the absence of evidence that relator knowingly waived
his right to a jury trial.

Nevertheless, the court of appeal erred in pretermitting relator’s
contention that the evidence was insufficient to prove the validity of the
earlier convictions, which is an essential element of the charged crime.
If relator prevails on these assignments of error, he is entitled to
reduction of the grade of the charged offense and cannot be retried for
the more serious crime. State v. Johnson, 541 So.2d 818 (La.1989).

Accordingly, the judgment of the court of appeal is set aside
insofar as the judgment pretermitted a ruling on the sufficiency of the
evidence. The case is remanded to the court of appeal to review the
sufficiency of the evidence of the earlier convictions. If one or more of
the earlier convictions was not proved beyond a reasonable doubt, the
court of appeal should discharge relator accordingly and order retrial
only on the lesser grade of the charged offense.

State v. Morris, 615 So.2d 327, 328 (La.1993) (footnote omitted).

Count 1

3

The relevant statutes as to count one are: La.R.S. 40:967(F)(1)(a) and 40:981.3.

Louisiana Revised Statutes 40:967(F)(1)(a) reads:

Any person who knowingly or intentionally possesses
twenty-eight grams or more, but less than two hundred grams, of cocaine
or of a mixture or substance containing a detectable amount of cocaine
or of its analogues as provided in Schedule II(A)(4) of R.S. 40:964,
shall be sentenced to serve a term of imprisonment at hard labor of not
less than five years, nor more than thirty years, and to pay a fine of not
less than fifty thousand dollars, nor more than one hundred fifty
thousand dollars.

Louisiana Revised Statutes 40:981.3, at the time of the offense, stated in pertinent

part:

A. (1) Any person who violates a felony provision of R.S. 40:966
through 970 of the Uniform Controlled Dangerous Substances Law
while on any property used for school purposes by any school, within
one thousand feet of any such property, or while on a school bus, shall,
upon conviction, be punished in accordance with Subsection E.

School property is defined in La.R.S. 40:981.3(C)(2) as “. . . all property used for

school purposes, including but not limited to school playgrounds, as well as any

building or area owned by the state or by a political subdivision and used or operated

as a playground or recreational facility and all parks and recreational areas

administered by the office of state parks.”

In making his argument, the Defendant alleges, first, that the State failed to

prove that the crime occurred in a drug free zone. The Defendant contends that the

State did not assert or prove that the area referred to as “Bunk Johnson” was a park

or recreational area administered by the Louisiana Office of State Parks.

The bill of information indicates that the Defendant possessed cocaine within

a drug-free zone, Bunk Johnson Recreational Park. At trial, Detective Hazelwood

testified that he used a roller tape used by traffic investigators to measure the distance

from where the Defendant was arrested and the Bunk Johnson Recreational Park.

4

According to Detective Hazelwood, the total measurement was less than one

thousand feet; the point of arrest was ten feet from where the narcotics were found.

However, as stated by the Defendant, no evidence was introduced at trial regarding

whether Bunk Johnson was a park or recreational area administered by the Louisiana

Office of State Parks, nor was there any evidence that proved the facility is used or

operated by the City of New Iberia, a political subdivision of the State, as a

playground or recreational facility as required by La.R.S. 40:981.3. Without any

evidence regarding same, we find that the State failed to prove this essential element

of the crime.

Next, the Defendant argues that the State failed to prove that he was a second

or subsequent offender. More specifically, the Defendant avers that the State failed

to offer any documents other than a certified copy of the bill of information and

minute entry from East Baton Rouge Parish of his prior conviction as proof that the

person named in the East Baton Rouge Parish bill of information was the same person

involved in the instant litigation. The Defendant complains that there are no

fingerprints in the bill of information to identify the Defendant as the same person in

the East Baton Rouge Parish bill of information. The Defendant’s charge as a second

or subsequent offender in the bill of information is an error patent and a discussion

of same is discussed therein.

The Defendant further argues that the State failed to prove that he was in

possession of narcotics. More specifically, the Defendant is critical of the three

police officers that testified about their involvement in the surveillance of the

Defendant. First, the Defendant complains that Detective Hazelwood did not see any

of the alleged narcotics transactions, nor did he see the Defendant store the drugs

5

underneath the house or in the pipe. Although the record supports the Defendant’s

allegation, it also indicates that Officer Davis and Detective Defelice were both in a

position that allowed them to visualize the Defendant during the surveillance.

Next, the Defendant points out that no drugs were found on his person when

he was apprehended by Detective Hazelwood. Although the Defendant had no drugs

on his person, Officer Davis and Detective Defelice both observed the Defendant

remove something from his crotch area and place something underneath the house

and in the pipe of the clothesline. The items retrieved from the underneath the house

and the pipe were later tested and were determined to be crack cocaine. Officer Davis

testified that he continued his visual surveillance of the Defendant after he stashed

the narcotics and that no other person was seen near the areas where the Defendant

had stashed the narcotics. Further, Detective Defelice testified that he never lost

sight of the Defendant and was positive that the man that was apprehended, the

Defendant, was the same man that had placed the narcotics underneath the house and

in the pipe.

With regard to Officer Davis’ testimony, the Defendant complains that Officer

Davis admitted that he saw only what he believed to be narcotics transactions and

asserts that the Defendant simply could have been shaking hands in the transaction.

Because none of the alleged participants were stopped and questioned, the Defendant

maintains that no evidence was offered to support the fact that these transactions

occurred. Officer Davis described the suspect transactions as follows:

On two different - - at two different points, they had another black
male subject that would - - that walked up to Mr. Edwards, made contact
with him; Mr. Edwards walked to the back of the house, looked around
as if checking the area, making sure everything was okay, bend down,
picked up an item, fooled around in the pipe where the crack was later
located, and then walked back up into the middle of the yard, not

6

actually going all the way to the street, and very quickly, very easily, it
appeared that he exchanged something with the black male subject.

Q. In the court - - based on your training and experience as a
Narcotics Officer, what did you - - what did this - - what
did that transaction - - those transactions appear to be?

A. It appeared to be an illegal narcotics transaction.

Considering Officer Davis’ detailed description of the two transactions and his

experience as a narcotics investigator, along with the fact that narcotics were found

in the areas visited by the Defendant during the transactions, we find that Officer

Davis’ testimony adequately supports the Defendant’s conviction with regard to

possession of narcotics.

Next, the Defendant is critical of Detective Defelice’s testimony wherein he

describes the Defendant’s activity in the areas where the narcotics were found

because Detective Defelice admitted that the area he was observing was dark, and he

was unable to see the details of the Defendant’s facial features. Detective Defelice

described what he could visualize from his location as follows:

Q. You were lying on the ground or were you crouched on the
ground?

A. I was chest on the ground with my head positioned to
where I could see.

Q. It was very dark behind there, was it not?

A. Yes, it was dark.

Q. And when you were crouched on the ground looking, you
could see a figure of a man?

A. I could see his clothing; I could see what color his clothing
were and I could tell it was a black male.

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Q. You could not see his face, you could not see any facial
features?

A. I couldn’t see his detailed features, no.

Q. You could not see that?

A. No.

Q You could see that he was a certain build, he was a black
person; at the point that you were still back there, that’s
about what you knew?

A. Correct.

Although Detective Defelice admits that the area was dark, he also testified that he

never lost sight of the Defendant and had no doubt that the man he observed while

behind the house was the Defendant who was arrested. Detective Defelice added that

he was about thirty feet from the Defendant and was looking directly at him during

his surveillance. Lastly, Detective Defelice further described what he could see as

follows:

Q. But once - - I take it that a person behind the house is in the
most shadow that they have there?

A. Right. But the closer I got to him, correct, was when I
started to actually identify him, I knew who he was - -
actually started to see his face; and he never saw me.

Q. So when the person was bending over and putting
something in there, all you could see was the dark figure
that was bending over?

A. I could see what he was wearing, too. I could see that
much and I could tell that he was holding something in his
hands.I mean, I was able to see him not in great detail, but
I was able to see a good bit, not just a shadow.

8

Considering the entirety of Detective Defelice’s testimony, we find that he adequately

identified the Defendant as the man who stashed the narcotics and who was

subsequently arrested.

Finally, the Defendant complains that no information was presented at trial to

establish the reliability of the confidential informants who provided tips to Detective

Hazelwood and that none of them were produced to connect the Defendant to any

drug transactions. Detective Hazelwood testified as to the reliability of his

informants as follows:

Q. The information you received over this period of time, you
received that information from confidential informants?

A. Yes, sir.

Q. Approximately how many different informants you with
information with regard to BR of Baton Rouge’s activity?

A. Do you want an estimate number? I mean - -

Q. The best that you can give.

A. About a dozen, I guess it could be.

Q. And had those informants proven to be reliable in the past?

A. Yes.

Q. Had they provided you with information that had led to a
narcotics arrests?

A. Yes, sir.

Q. Arrests that led to convictions?

A. Yes, sir.

Q. So those informants had been proven reliable with regard
to the information that they provided to you?

A. Yes, sir.

9

We find that the Defendant’s complaint has little significance with regard to

the element of possession in this case and is simply without merit.

Although the Defendant does not complain of the lack of conclusive DNA

evidence, we note that all of the plastic bags containing the cocaine were swabbed for

possible contact DNA and that some human DNA was obtained from plastic bags.

The laboratory, however, was unable to obtain a DNA profile for comparison, and

thus, could neither include nor exclude anyone, including the Defendant. Also, no

latent prints with observable ridge detail were developed from the bags – no

fingerprints were found.

Despite the lack of DNA evidence and fingerprints, we find that the evidence

adduced at trial was sufficient with regard to the element of possession, as Detectives

Davis and Defelice both identified the Defendant when he arrived at the location, and

they maintained a visual on the Defendant until he was arrested.

In conclusion, we find that although the State did not prove all the elements

essential of La.R.S. 40:981.3 regarding possession in a school zone, the remaining

offense of possession of a Schedule II substance, in violation of La.R.S.

40:967(F)(1)(a), is supported by the evidence. However, the validity of that

conviction hinges upon the treatment of an error patent, which will be discussed

further.

Count 2

The next alleged error is included in the first assignment of error and pertains

to the second count, conducting a financial transaction involving proceeds known to

be derived from a violation of La.R.S. 40:966, et seq., a violation of La.R.S. 40:1049.

Louisiana Revised Statutes 40:1049 reads, in pertinent part:

10

A. It is unlawful for any person knowingly or intentionally to
conduct a financial transaction involving proceeds known to be derived
from a violation of R.S. 40:966 et seq. when the transaction is designed
in whole or in part to conceal or disguise the nature, location, source,
ownership, or the control of the proceeds known to be derived from such
violation or to avoid a transaction reporting requirement under state or
federal law.

The Defendant argues that no evidence was presented by the State to prove that the

money confiscated from his person was the result of drug proceeds. The Defendant

adds that no controlled buys were conducted, no drugs were seized from his person,

no other person was stopped who possessed drugs, and no confidential informants

were present at trial. Further, the Defendant maintains that $305.00 is not an

unusually large sum of money and does not automatically prove a sale of narcotics.

Detective Davis testified that other than the two transactions he saw which are

described above, he had no proof that the money found on the Defendant was from

drug proceeds. He further testified that he did not see the other person put drugs in

his pocket, nor did he see the Defendant counting out money.

We were unable to find any jurisprudence which has applied this statute to the

evidentiary facts of the case. However, because no money was seen changing hands,

and because $305.00 is not an unusually large amount of cash, we find that the

evidence is insufficient to find the Defendant guilty of this charge. Therefore, we

overturn the Defendant’s conviction for count two, transaction involving proceeds

from a drug offense, in violation of La.R.S. 40:1049.

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 one error

patent.

11

The Defendant was charged in the bill of information as a second or subsequent

offender in violation of La.R.S. 40:982. On August 16, 2004, defense counsel filed

a Motion to Strike the language regarding the prior conviction from the bill of

information. The motion was denied at a hearing held on April 5, 2005.

In State v. Skipper, 04-2137, pp. 25-26, (La. 6/29/05), 906 So.2d 399, 416-17,

the supreme court held:

[W]e hold that La. R.S. 40:982 should be treated as a sentencing
enhancement provision after conviction, like La. R.S. 15:529.1, and not
as a substantive element of the presently-charged offense. Specifically,
the allegations of the prior offense must not be placed in the charging
instrument of the second or subsequent drug-related offense nor may
evidence of the prior offense be presented to the jury determining the
defendant’s guilt or innocence in the trial of the second or subsequent
drug-related offense for the purpose of sentence enhancement under La.
R.S. 40:982.

State v. Murray, 357 So.2d 1121 (La.1978), and any appellate
decisions, as discussed herein, which stand for the proposition that a
prior conviction must be placed in the charging instrument of the second
or subsequent drug-related offense or proved to the jury in order to
enhance the sentence of a drug-related felony under La. R.S. 40:982, are
hereby overruled.

So finding, we hold that the trial court properly granted the
motion to quash the bill of information in this matter as the state
misapplied La. R.S. 40:982 by placing the allegation of the prior offense
in the bill of information. The ruling of the trial court on the motion to
quash is AFFIRMED.

At the time Skipper was rendered, the Defendant had been convicted and was

awaiting sentencing. In State v. Ruiz, 06-30, 05-1098, 05-1261 (La.App. 3 Cir.

5/24/06), 931 So.2d 472, this court found Skipper retroactively applicable to the

defendant who had been convicted, but not sentenced at the time Skipper was

decided. In Ruiz, this court chose to vacate only the second-offense portions of the

convictions because “La.R.S. 40:982 contains no proscriptions against the most

recent conduct charged, i.e. possession and distribution of a controlled dangerous

12

substance.” Id. at 479. This court felt that the substantive portion of the offenses

were “severable from the non-crimes of second-offense possession and second-

offense distribution.” Id. at 479. To address the jury’s exposure to the defendant’s

criminal history, this court conducted a harmless error analysis and concluded that the

strong evidence in the case, i.e., the defendant’s act of selling cocaine to an

undercover police officer, made the error harmless.

Our disposition of Ruiz stated:

Therefore, Defendant’s convictions for second-offense possession
and second-offense distribution of cocaine and the attendant sentences,
including the adjudication and sentence under La.R.S. 15:529.1, are
vacated. However, we order the entry of convictions for the lesser
offenses of possession of cocaine and distribution of cocaine, both in
violation of La.R.S. 40:967. The case is remanded for further
proceedings, in accordance with this opinion.

Ruiz, 931 So.2d at 484.

Our Louisiana Supreme Court granted writs in the Ruiz case and affirmed our

decision. In that opinion, the Court indicated that harmless error analysis was proper

when dealing with evidence of a prior crime appearing on the bill of information

when it stated:

[T]he erroneous treatment of La. Rev. Stat. 40:982 as a substantive
element of the offense, thus placing the defendant’s prior offenses in the
charging instrument and before the jury, does not necessarily render the
criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence. . . .The erroneous introduction of
evidence of other crimes is a trial error, which may be qualitatively
assessed in the context of the other evidence to determine whether its
admission was harmless beyond a reasonable doubt. (Citation omitted.)

State v. Ruiz, 06-1755, p.4 (La. 4/11/07) __ So.2d __.

In this case, the Defendant was observed by two officers removing something

from his crotch area and placing it underneath the house and in the pipe of a

clothesline. These items were later tested and found to be crack cocaine. Therefore,

13

we find that the judge’s exposure to the Defendant’s criminal history, in this case,

was harmless as well.

Thus, in accordance with Ruiz, we vacate the Defendant’s conviction and

sentence for possession of more than 28 grams, but less than 200 grams of cocaine,

second offense, and enter a conviction for the lesser offense of possession of more

than 28 grams, but less than 200 grams of cocaine. Further, we remand the case for

resentencing on this conviction.

ASSIGNMENT OF ERROR NO. 2:

In this assignment of error, the Defendant argues that the State failed to give

notice of its intent to introduce evidence of highly prejudicial and speculative other

crimes evidence against him at trial in violation of La.Code Evid. art. 404(B),

including alleged prior drug transactions. More specifically, the Defendant contends

that the incidents, innuendo, and assumptions related by police at trial were not

charged in the indictment and were offered to prejudice the trier of fact as prior bad

acts, falling with the scope of La.Code Evid. art. 404(B). Additionally, the Defendant

maintains that the State did not give notice of its intent to introduce alleged prior acts,

nor was a Prieur hearing conducted in this case.

Article 404(B) reads, in pertinent part:

B. Other crimes, wrongs, or acts. (1) Except as provided in
Article 412, evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, of the nature of any such evidence
it intends to introduce at trial for such purposes, or when it relates to
conduct that constitutes an integral part of the act or transaction that is
the subject of the present proceeding.

14

In State v. Brewington, 601 So.2d 656, 657 (La.1992), the supreme court stated:

This court has approved the admission of other crimes evidence
when it is related and intertwined with the charged offense to such an
extent that the state could not have accurately presented its case without
reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978); State v.
Clift, 339 So.2d 755, 760 (La.1976). In such cases, the purpose served
by admission of other crimes evidence is not to depict the defendant as
a bad man, but rather to complete the story of the crime on trial by
proving its immediate context of happenings near in time and place.
McCormick, Law of Evidence 448 (2d ed. 1972). The concomitant
other crimes do not affect the accused’s character, because they were
done, if at all, as parts of a whole; therefore, the trier of fact will
attribute all of the criminal conduct to the defendant or none of it. And,
because of the close connection in time and location, the defendant is
unlikely to be unfairly surprised. 1 Wigmore, Evidence § 218 (3d ed.
1940). State v. Haarala, 398 So.2d 1093, 1097 (La.1981).

The Defendant’s assignment of error centers around the testimony of Detective

Hazelwood. First, the Defendant objects to Detective Hazelwood’s testimony that

he had been receiving information about the Defendant from confidential informants

for about ten years. When Detective Hazelwood was asked how long he had been

receiving information, the Defendant objected as follows:

Q. Do you recall approximately how long you had been receiving
that information?

MR. PEREZ:

Well, Judge, I am going to have to object to clearing it [sic] being
hearsay. Not only hearsay but hearsay that makes an allegation strictly
that my client has been transporting drugs.

I think if you go - - I understand that they may be able to go up to
certain types of background in order to, you know, explain why he did
something. But I don’t believe that they can then go off into slanderous
accusations that they heard from somebody on the street.

I object to the line of questioning and to the answers.

MR. VINES:

Certainly, Judge, as you are aware, we are also trying a Motion to
Suppress. One of the things we have to be able to show during this is to

15

establish probable cause as to why the Officers stopped and detained
Mr. Edwards, and ultimately searched Mr. Edwards, and seized evidence
off of Mr. Edwards’ person - - is that mind set that the officers.

That information that they had, that particular suspicion - - to be
able to make that stop, and detention, and ultimate search and seizure of
evidence.

I think it is a perfectly legal line of questioning.

MR. PEREZ:

Well, if this was all that was happening that night, I would say
that - -

THE COURT:

- - you have made your objection to hearsay. It is overruled for
the basis stated by Mr. Vines and in addition I think it is clearly
established in the jurisprudence that Police Officers have leeway by way
of res gestae, explaining as to why they did what they did and when they
did what they did. So overruled.

In addition to that, sir, we are trying the Motion to Suppress.

BY MR. VINES:

Q. How long had you been receiving information?

A. Probably ten years.

Q. The information that you received - -

MR. PEREZ:

Excuse me. No, Judge, we are going to go back ten years in order
to have probable cause in an arrest that was made inside here - - we are
going to go back ten years in order to begin that probable cause?

THE COURT:

That was a very specific question. I [sic] going to overrule it.

I am going to him some latitude on developing the case, sir.

That was a specific question; one answer.

We will see where we are.

16

Overruled.

Next, the Defendant complains of Detective Hazelwood’s testimony that about

a dozen confidential informants provided information to him. However, the

Defendant made no objection to this testimony at trial.

Finally, the Defendant objects to Detective Hazelwood’s testimony about an

incident involving an investigation of the Defendant prior to May 22, 2004.

Detective Hazelwood testified that he had received information which indicated that

the Defendant was transporting drugs for street sale to New Iberia. When the

Defendant was observed loitering in front of Brenda’s Diner, Detective Hazelwood

tried to stop him. A foot pursuit ensued, but Detective Hazelwood was unable to

apprehend the Defendant. Detective Hazelwood further testified that a vehicle

registered to a female in Baton Rouge, Louisiana located in a nearby parking lot was

seized, as well as drug paraphernalia found on a black male who was sitting in the

passenger’s seat. The passenger was subsequently taken in for questioning.

The Defendant objected to this testimony as follows:

MR. PEREZ:

Judge, we are going a little - - if this was not Mr. Edwards in the
vehicle and this was somebody in the car that did not belong to Mr.
Edwards, then when are we going to get anywhere close to starting to try
this case.

We are going back ten years - - we have been given no 40B [sic] -
-

THE COURT:

Overruled. We fast-forwarded. We are at Brenda’s Diner.

MR. PEREZ;

Uh huh.

17

THE COURT:

He still has the right to explain what he did and why he did it.

MR. PEREZ:

You know, if somebody goes out and robs bank - -

THE COURT:

- - that’s argument. You have made your objection. I have ruled.
It is noted for the record.

As stated by the trial court upon the Defendant’s first objection to this

testimony, the purpose of the line of questioning was to establish probable cause. In

addition to a trial on the merits, the trial court was also trying a motion to suppress

evidence in which the Defendant alleged that he was forcibly stopped, detained and

searched without a warrant or other legal justification. In State v. Scales, 93-2003,

p. 6, (La. 5/22/95), 655 So.2d 1326, 1331.cert.denied, 516 U.S. 1050, 116 S.Ct. 716

(1996), the supreme court stated:

Probable cause to arrest exists when the facts and circumstances
within an officer's knowledge, and of which he has reasonable and
trustworthy information, are sufficient to justify a man of average
caution in the belief that the accused has committed an offense. State v.
Elliot, 407 So.2d 659 (La.1981); State v. Wilson, 467 So.2d 503 (La.),
cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985).
Probable cause to arrest is not absolute cause, and to determine its
existence, courts must examine facts and circumstances within the
arresting officer's knowledge in light of the experience of reasonable
people, not legal technicians. State v. Billiot, 370 So.2d 539 (La.), cert.
denied, 444 U.S. 935, 100 S.Ct. 284, 62 L.Ed.2d 194 (1979).

We find that the testimony elicited from Detective Hazelwood was not used to

prove the character of the Defendant, but was clearly the knowledge of Detective

Hazelwood, which would establish probable cause. This testimony was not evidence

of a prior arrest or conviction, but described the circumstances leading to the

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surveillance and ultimate apprehension and arrest of the Defendant. Accordingly, we

find that a Prieur hearing was not required, and thus, this assignment of error is

without merit.

ASSIGNMENT OF ERROR NO. 3:

In his final assignment of error, the Defendant argues that his sentence is

excessive, arbitrary, capricious, and disproportionate based on the facts alleged and

the crime charged. The Defendant’s argument focuses on the trial court’s ruling that

he is a subsequent offender and that the enhanced sentence on count one is cruel,

excessive and unusual. We have vacated the Defendant’s sentence for count one, and

thus, this argument is moot.

In count two, the Defendant was found guilty of conducting a financial

transaction involving proceeds from a drug offense, a violation of La.R.S. 40:1049,

which states in pertinent part, “E. Any person who is convicted of violating this

Section shall be imprisoned for not more than ten years, with or without hard labor,

or fined not more than ten thousand dollars, or both.” The Defendant was sentenced

to five years at hard labor.

This court has discussed the law regarding excessive sentences as follows:

The Eighth Amendment to the United States Constitution and La.
Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “ ‘[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.’ ” State
v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given
wide discretion in imposing a sentence, and, absent a manifest abuse of
that discretion, we will not deem as excessive a sentence imposed within
statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670
So.2d 713. However, “[m]aximum sentences are reserved for the most
serious violations and the worst offenders.” State v. Farhood, 02-490,
p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant
question for us to consider on review is not whether another sentence
would be more appropriate, but whether the trial court abused its broad

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discretion in sentencing a defendant. State v. Cook, 95-2784
(La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615,
136 L.Ed.2d 539 (1996).

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955,

958.(alteration in original)

At sentencing, the trial court stated:

I note for the record, the pre-sentence investigation that I ordered upon
conviction.

....

I do have before me a thirty-six year old, and I do have the pre-sentence
investigation that I’ve gone over. I do have the information not only
from the pre-sentence investigation but from sitting through the trial and
with the evidence produced about the amount of drugs that were
available.

....

With regards to the transactions involving the proceeds derived
from drug activity, that’s zero (0) to ten (10).

So this Court is bound by what the statute says. And this Court
has considered all of the information in front of me with regards to Mr.
Edwards’ criminal history. This Court takes into consideration that he
did plead guilty - - he had two (2) felony convictions on the same day.

....

They also say that on September 28, 1995, his possession of
cocaine case, that was under supervision or parole or whatever, was
terminated unsatisfactorily.

....

But with regards to the seriousness of this offense, and I do not
believe that all people that engage in drug activity are stupid. I don’t
believe that. I know that there are no victimless crimes, and drug sale
is not a victimless crime, as well.

As noted above, the Defendant does not make any specific arguments with

regard to the excessiveness of this sentence on count two. Given the Defendant’s

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criminal history and status as revealed in his Pre-sentence Investigation Report, we

cannot say that the Defendant’s sentence of five years, one-half of the maximum

sentence allowed by La.R.S. 40:1049, is excessive. Further, the Defendant did not

receive a fine. Accordingly, we find that this portion of the assignment of error lacks

merit.

CONCLUSION:

The Defendant’s conviction for possession of cocaine, greater than 28 grams,

less than 200 grams within 1,000 feet of a drug free of a drug-free zone is vacated.

Further, we vacate the Defendant’s conviction and sentence for possession of more

than 28 grams, but less than 200 grams of cocaine, second offense, and enter a

conviction for the lesser offense of possession of more than 28 grams, but less than

200 grams of cocaine. The case is remanded to the trial court for re-sentencing on

this conviction.

Additionally, we overturn the Defendant’s conviction for transaction involving

proceeds from a drug offense, as there is insufficient evidence to support the

conviction.

VACATED AND REMANDED IN PART, AND REVERSED IN PART.

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