State of Louisiana v. Timothy D. Perkins

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-0423

STATE OF LOUISIANA

VERSUS

TIMOTHY D. PERKINS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 5949-05
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

CONVICTION AFFIRMED; SENTENCE NOT CONSIDERED.

John F. DeRosier
District Attorney
Sharon D. Wilson
Assistant District Attorney
Carla S. Sigler
Assistant District Attorney
Fourteenth Judicial District
1020 Ryan Street
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
Post Office Box 2775
Monroe, LA 71207-2775
(318) 387-6124
COUNSEL FOR DEFENDANT/APPELLANT:
Timothy D. Perkins

PETERS, J.

A jury convicted the defendant, Timothy D. Perkins, of the offense of

attempted distribution of cocaine, a violation of La.R.S. 14:27 and La.R.S.

40:967(A)(1). Thereafter, the trial court sentenced the defendant to serve twenty

years at hard labor, with the first year of the sentence to be served without the benefit

of probation, parole, or suspension of sentence. He now appeals his conviction and

sentence, asserting six assignments of error. For the following reasons, we affirm the

defendant’s conviction in all respects, but decline to consider the issues related to the

defendant’s sentence, finding that those issues are not properly before us.

DISCUSSION OF THE RECORD

The incident giving rise to the conviction now before this court occurred on

February 16, 2005, when Jennifer Guidry, a Calcasieu Parish resident, telephoned the

defendant and requested that he assist her in obtaining some cocaine. After

exchanging a number of telephone calls, Ms. Guidry and the defendant agreed that

she would pick him up at his residence and the two of them would contact his

supplier and retrieve the cocaine for her. What the defendant did not know is that Ms.

Guidry was working undercover for the Louisiana State Police when she initiated the

contact with him.

Ms. Guidry testified at trial as did Chris Gray, Christopher Ivey, and Steven

Lafargue, three Louisiana State Police officers who participated in the investigation.

The facts established by these witnesses are that Ms. Guidry approached the

Louisiana State Police in early 2005, and offered to share her information concerning

illegal narcotics trafficking with that agency in a last-ditch effort to break her own

dependency on narcotics. Part of the information she shared with the State Police

related to the defendant’s involvement in illegal narcotics activity. After taking steps

to verify information Ms. Guidry provided to the agency, the officers working

regional narcotics investigations solicited her assistance in effecting a purchase of

illegal narcotics from the defendant. After she agreed to help in their investigation

of the defendant, the State Police installed a tracking devise as well as video/audio

surveillance equipment in Ms. Guidry’s vehicle.

When she telephoned the defendant on February 16, 2005, Ms. Guidry was in

the presence of three State Police officers who monitored the calls. Before she left

to pick up the defendant, the officers searched her person and her vehicle for

contraband, money, or weapons. Finding none, they provided her with $150.00 for

the proposed purchase and allowed her to travel to the defendant’s residence. During

the trip leading up to the purchase, Ms. Guidry and the defendant were under constant

visual surveillance by at least one of the three officers, and their conversations were

constantly monitored by use of the audio surveillance equipment.

The video camera installed in Ms. Guidry’s vehicle recorded a man approach

Ms. Guidry’s vehicle and hand the defendant two small bags in exchange for some

money. The defendant then provided one of the small bags to Ms. Guidry in

exchange for the agreed price of $150.00. Ms. Guidry then dropped the defendant off

at his residence, met the officers at a predetermined location, and gave them the bag

she had obtained from the defendant. Although the officers had kept Ms. Guidry

under constant surveillance, they again searched her and her vehicle, finding no

contraband, money, or weapons. Later scientific testing of the contents of the bag

Ms. Guidry gave the officers established that it contained cocaine.

On April 5, 2005, the state charged the defendant by bill of information with

distribution of cocaine, a violation of La.R.S. 40:967(A)(1). A three-day trial began

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on September 6, 2006, and, after completion of the evidentiary phase of the trial, the

jury returned a verdict finding the defendant guilty of the lesser and included offense

of attempted distribution of cocaine. The trial court rejected the defendant’s

November 21, 2006 motion for new trial after a January 5, 2007 hearing. On that

same day, and immediately after ruling on the defendant’s motion for new trial, the

trial court sentenced the defendant. Thereafter, the defendant filed the appeal now

before us. In this appeal, his attorney has asserted three assignments of error:

1. The evidence was insufficient to convict the Mr. Perkins [the
defendant] of attempted distribution of cocaine.

2. The Trial Court erred in its denial of the motion for new trial.

3. The sentence of 20 years at hard labor was excessive in light of
the facts of the case.

Additionally, the defendant has asserted three pro se assignments of error:

1. Did perjured testimony by the State’s witness effect [sic] the
outcome of Defendant’s trial?

2. Was entrapment used by law enforcement?

3. Was Defendant’s due process violated?

OPINION

Assignment of Error No. 1 and Pro Se Assignment of Error No. 1

In the first assignment of error asserted by his attorney, the defendant argues

that the evidence presented by the state is insufficient to support his conviction of

attempted distribution of cocaine. It is well established in our law that when a

defendant raises the issue of sufficiency of evidence on appeal, the reviewing court

must review the evidence in the light most favorable to the prosecution and determine

whether any rational trier of fact could have found all of the critical elements of the

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offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781 (1979); see also State v. Ordodi, 06-207, (La. 11/29/06), 946 So.2d 654.

It is unlawful for any person to knowingly or intentionally distribute cocaine,

which is classified as a controlled dangerous substance. La.R.S. 40:967(A)(1);

La.R.S. 40:964. “A defendant is guilty of distribution of cocaine when he transfers

possession or control of cocaine to his intended recipients.” State v. Anderson,

29,282, p. 3 (La.App. 2 Cir. 6/18/97), 697 So.2d 651, 655. To establish the offense

of distribution of a controlled dangerous substance, the state’s burden is to establish

beyond a reasonable doubt “(1) ‘delivery’ or ‘physical transfer;’ (2) guilty knowledge

of the controlled dangerous substance at the time of transfer; and (3) the exact identity

of the controlled dangerous substance.” Id.

It is also unlawful for any person who has a specific intent to commit

distribution of a controlled dangerous substance to do or omit an act with the purpose

of accomplishing the commission of that offense, i.e., to attempt to commit that

offense. La.R.S. 14:27(A). Specific intent is “that state of mind which exists when

the circumstances indicate that the offender actively desired the prescribed criminal

consequences to follow his act or failure to act.” La.R.S. 14:10(1). Furthermore,

“[a]n attempt is a separate but lesser grade of the intended crime; and any person may

be convicted of an attempt to commit a crime, although it appears on the trial that the

crime intended or attempted was actually perpetrated by such person in pursuance of

such attempt.” La.R.S. 14:27(C).

The defendant does not seriously argue that the state failed to establish physical

transfer or guilty knowledge, or that the substance transferred was not a controlled

dangerous substance. Instead, he asserts that he intended that he and Ms. Guidry

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would consume the cocaine together. Therefore, he argues, he is not guilty of

distribution, but merely of possession of cocaine. The supreme court rejected a

similar argument in State v. Smith, 04-1123 (La. 9/24/04), 885 So.2d 508, wherein it

concluded that a defendant’s act of taking delivery of illegal narcotics, bringing the

narcotics to another’s residence, and sharing the narcotics with someone at that

residence sufficiently establishes the offense of distribution of a controlled dangerous

substance. We find no merit in this argument as well.

The evidence establishes beyond a reasonable doubt that the defendant

distributed cocaine to Ms. Guidry. The jury chose to return a responsive verdict

which is clearly provided for in La.R.S. 14:27(C). Such a compromise verdict is

permissible “so long as the evidence supports either the verdict given or the original

charge.” State v. Charles, 00-1611, p. 5 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519,

writ denied, 01-1554 (La. 4/19/02), 813 So.2d 420 (citing State ex rel. Elaire v.

Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432

(1983)).

In the first assignment of error asserted by his attorney, the defendant also

attacks Ms. Guidry’s credibility, and the defendant does the same in his first pro se

assignment of error. The defendant further asserts in his first pro se assignment of

error that Chris Gray committed perjury. As pointed out in Ordodi, 946 So.2d 654,

the reviewing court will not generally second-guess the determinations of the fact

finder with regard to the weight given the respective credibility of the witnesses

beyond that required under the Jackson standard of review. Thus, we find no merit

in this issue as raised in the first assignment of error submitted through the

defendant’s attorney, or as asserted in his first pro se assignment of error.

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Assignment of Error No. 2 and Pro Se Assignment of Error No. 3

In the second assignment of error filed by his attorney, the defendant asserts

that the trial court erred in denying his motion for new trial. In the third pro se

assignment of error, the defendant asserts that his due process rights were violated

when the trial court denied his motion for new trial.

The defendant’s motion for new trial was based on La.Code Crim.P. art.

851(5), which provides that the trial court shall grant a new trial whenever “[t]he

court is of the opinion that the ends of justice would be served by the granting of a

new trial, although the defendant may not be entitled to a new trial as a matter of

strict legal right.” The defendant supported his motion with an affidavit executed by

his attorney wherein the attorney asserted that Ms. Guidry had revealed to him that

she committed perjury when testifying at the defendant’s trial. Specifically, the

affidavit asserts that Ms. Guidry lied about the reasons she initially contacted the

Louisiana State Police. At trial, she had testified that she contacted State Police in

a last-ditch effort to address her own personal illegal narcotics problem. According

to the affidavit, Ms. Guidry informed the defendant’s attorney that the State Police

had actually contacted her, requesting assistance in making a criminal case against

the defendant.

At the hearing on the motion for new trial, Ms. Guidry testified that the

information in the affidavit was false, and that the testimony she presented at trial was

true. She admitted that she had given this false statement to the defendant’s attorney,

but said that she did so because she was pressured by friends and family. The trial

court rejected the defendant’s motion.

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This court has routinely held that denial of a motion for new trial to serve the

ends of justice is not subject to review upon appeal. State v. Bell, 04-1183 (La.App.

3 Cir. 3/2/05), 896 So.2d 1236, writ denied, 05-828 (La. 11/28/05), 916 So.2d 143;

State v. Giles, 04-359 (La.App. 3 Cir. 10/6/04), 884 So.2d 1233, writ denied, 04-2756

(La. 3/11/05), 896 So.2d 62; State v. Jason, 01-1428 (La.App. 3 Cir. 7/10/02), 820

So.2d 1286. We choose to follow that holding and decline to review these

assignments of error.

Pro Se Assignment of Error No. 2

In this second pro se assignment of error, the defendant asks whether

entrapment was used by law enforcement. However, he neither asserted nor argued

this affirmative defense at trial. A legal argument cannot be made for the first time

on appeal. Uniform Rules—Courts of Appeal, Rule 1-3. Therefore, we decline to

consider this assignment of error as it is not properly before this court.

Assignment of Error No. 3

In the third assignment of error filed by his attorney, the defendant asserts that

the sentence imposed is excessive. We decline to address this assignment of error

because we find that it is not properly before us.

When the state initially filed the bill of information charging the defendant with

distribution of cocaine, the filing was assigned Docket Number 5949-05, and all

subsequent proceedings through the January 5, 2007 hearing on the defendant’s

motion for new trial were heard under this docket number. However, the defendant

was not sentenced under this docket number.

After his conviction, the state filed pleadings requesting that the defendant be

sentenced as an habitual offender. However, the state did not file the pleadings in

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Docket Number 5949-05, but filed the pleadings under an entirely different docket

number, Docket Number 17386-06.

When the January 5, 2007 hearing began, the state made the following

comment concerning the issues then before the trial court:

Your Honor, this is State of Louisiana vs. Timothy D. Perkins. It
is Docket No. 5949-05. Under that docket number, this defendant was
found guilty of attempted distribution of cocaine.

[The defendant’s attorney] filed a motion for new trial which was
set for today. Also, he is set for sentencing. And the State also filed
under Docket No. 17386-06 a habitual offender bill.

After hearing the argument and evidence addressing the motion for new trial, the trial

court rejected the motion. When the trial court inquired of the state concerning the

next matter to be considered, the assistant district attorney responded that “[u]nder

Docket No. 17386-06,” the state had charged the defendant with being an habitual

offender and requested that the trial court proceed with his sentencing “Only as it

relates to habitual offender second and the offense of distribution of cocaine.” When

the trial court asked the defendant’s attorney if he had any response, the attorney

responded “No, Judge.” The trial court then sentenced the defendant as an habitual

offender.

On January 17, 2007, the defendant filed a document entitled “Motion for

Appeal and Designation of Record.” It referenced only Docket Number 5949-05 and

stated the following:

NOW INTO COURT comes defendant herein, through
undersigned counsel and on suggesting to the Court that the record
herein shows error to his prejudice and that he is desirous to appeal to
the Third Circuit Court of Appeal of the State of Louisiana and that the
Louisiana Appellate Project [Paula Marx, Regional Supervisor, P. O.
Box 80006, Lafayette, LA 70598-0006] be appointed to appeal this case,
pursuant to R.S. 15:150.

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FURTHER, PURSUANT TO C.Cr.P.,[sic]Art. 914.1(A), the
defendant respectfully Designates the entire transcript of each hearing
herein and all of the pleadings for inclusion in the appellate record.

On that same day, the trial court executed an order prepared by the defendant’s

attorney granting the defendant’s appeal and setting a return date. This order

referenced only Docket Number 5940-05. The Notice of Appeal filed in this court

referenced only Docket Number 5940-05. We find no motion, oral or written, that

references Docket Number 17386-06.

Louisiana Code of Criminal Procedure Article 911 provides that “[a]ppeal is

the exercise of the right of the state or the defendant to have a judgment or ruling

reviewed by the proper appellate court.” However, “[t]he jurisdiction of the trial

court is divested and that of the appellate court attaches upon the entering of the order

of appeal.” La.Code Crim.P. art. 916. Thus, in this matter, jurisdiction of this court

has only attached to the proceedings in Docket Number 5940-05. Because

jurisdiction in Docket Number 17386-06 is still vested in the trial court, and because

all sentencing issues are found in that docket number, this court has no jurisdiction

to consider those issues. See State v. Felix, 05-637 (La.App. 3 Cir. 12/30/05), 918

So.2d 577, writ denied, 06-1137 (La. 11/22/06), 942 So.2d 548.

DISPOSITION

We affirm the defendant’s conviction in all respects. We decline consideration

of issues involving the excessiveness of the defendant’s sentence, finding that the

trial court has not been divested of jurisdiction as to those issues.

CONVICTION AFFIRMED; SENTENCE NOT CONSIDERED.

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