State of Louisiana v. Diwarn R. Bradford

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1136

STATE OF LOUISIANA

VERSUS

DIWARN R. BRADFORD

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 149,409
HONORABLE MARK JEANSONNE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

CONVICTION AND SENTENCE AFFIRMED;
REMANDED WITH INSTRUCTIONS.

David Lafargue
Assistant District Attorney
Twelfth Judicial District
P. O. Box 277
Marksville, LA 71351
(318) 253-7521
Counsel for Appellee:
State of Louisiana

Donald R. Dobbins
Attorney at Law
327 North Boulevard, Suite 103
Baton Rouge, LA 70801
(225) 387-6010
Counsel for Defendant/Appellant:
Diwarn R. Bradford

DECUIR, Judge.

Defendant, Diwarn Bradford, was charged by bill of information with three

counts of possession of cocaine with intent to distribute, in violation of La.R.S.

40:967(A). After a jury trial, Defendant was found guilty as charged. He was

sentenced to serve three concurrent thirty-year terms of imprisonment. Defendant

now appeals alleging two errors: the State’s non-compliance with discovery

procedure and the imposition of an excessive sentence. For the following reasons,

we affirm.

In his first two assignments of error, Defendant complains of the State’s failure

to disclose its possession of the cocaine that was purchased by confidential

informants from Defendant on three separate occasions as set forth in each of the

three counts listed in the Bill of Information. Accordingly, Defendant contends the

evidence should have been suppressed in accordance with La.Code Crim.P. art

729.5(A), and the trial court abused its discretion when it failed to do so, thereby

prejudicing Defendant’s case.

Generally, under La.Code Crim.P. art. 718, the State must produce, on motion

of the defendant, tangible evidence it intends to introduce at trial. Article 729.5

provides for sanctions “as may be appropriate” for the failure to comply with Article

718 or any other discovery rules. Nevertheless, a violation of discovery procedure

which is not sanctioned by the trial court constitutes reversible error only when a

defendant is prejudiced as a result of the violation. State v. Harris, 00-3459 (La.

2/26/02), 812 So.2d 612.

In the instant case, the State notified Defendant of its intent to introduce into

evidence the lab reports and certificates of analysis which evidenced the testing done

on the cocaine purchased from Defendant. Upon receipt of Defendant’s motion for

discovery, the State provided defense counsel with a copy of its entire file, including

the lab reports which verified the substance at issue as cocaine. On the morning of

trial, the State offered into evidence, as a substitute for the actual cocaine in its

possession, photographs of the bags of cocaine taken at the crime lab. Defendant

objected.

Defendant has failed to establish how he was prejudiced by not being aware

that the State intended to bring to trial the actual bags of cocaine or photographs

thereof. He argues only that the trial court erred in allowing the introduction of

inculpatory evidence not disclosed despite discovery requests. Defendant does not

argue that he sought to physically possess the cocaine for any purpose that might have

changed the outcome of the trial. He does not argue that he was denied the

opportunity to test or otherwise inspect the cocaine. In fact, he knew the cocaine had

been submitted for testing by the State. Defendant asserts that “[p]ursuant to art. 729,

the lower court[’]s reliance upon inadmissible evidence to sentence this defendant to

thirty (30) years is harmful error.” In other words, Defendant argues his convictions

and sentences are the prejudice which resulted from this error.

Louisiana’s criminal discovery rules are intended to eliminate
unwarranted prejudice arising from surprise testimony and evidence, to
permit the defense to meet the state’s case, and to allow a proper
assessment of the strength of its evidence in preparing a defense. La. C.
Cr. P. arts. 716- 729; State v. Allen, 94-2262 (La.11/13/95), 663 So.2d
686.

State v. Thompson, 44,176, p. 8 (La.App. 2 Cir. 5/13/09), 12 So.3d 1002, 1006.

Defendant has failed to show prejudice to his case. Accordingly, the trial court

did not err when it allowed admission of the photographs of the cocaine into

evidence. There is no merit to these assignments of error.

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In Defendant’s third assignment of error, he argues that the maximum

sentences in this case are excessive under the circumstances. He argues that he “is

entitled to modification of his sentence[s] pursuant to La.C.Cr.P. art. 894.1

considering his remorse, cooperation with the State, and compelling mitigating

circumstances.”

Defendant was convicted of possession of a controlled dangerous substance

with intent to distribute. For the offense of distribution in this case, the sentencing

range is not less than two years, nor more than thirty years at hard labor with the first

two years without benefit of parole, probation, or suspension of sentence. In addition,

an offender may be fined up to fifty thousand dollars. La.R.S. 40:967(B)(4)(b).

Defendant was sentenced to the maximum prison term.

In State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d

1035, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, this court held:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether
the trial court abused its broad sentencing discretion, not whether
another sentence might have been more appropriate. 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).

Id. 1042-43.

At the sentencing hearing, the State argued that Defendant had a prior

conviction for possession of cocaine with intent to distribute and an attempted

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manslaughter conviction. However, the State said that it would not file a habitual

offender bill against Defendant, which could result in a life sentence. Therefore, the

State argued that a maximum sentence of thirty years under the circumstances was

appropriate.

Defense counsel argued that the amounts of the illegal substances were

relatively small. He argued Defendant was a small “fish” who did not deserve the

maximum penalty. Defendant made a lengthy plea for leniency, arguing that his wife

and family needed him to take care of them, particularly since his wife was pregnant

with their third child. He argued that a maximum sentence would destroy him and his

family. He further argued that the last time he was in trouble was nine years prior to

the current offenses.

The trial court gave a lengthy recitation outlining its reasons for the sentences.

The trial court noted that it had reviewed Defendant’s criminal history, his family

situation, and the fact that he has contributed to a dangerous drug problem in the

community. Subsequent to the hearing, Defendant filed a motion to reconsider the

sentence imposed, but he did not assert specific grounds in support of the motion.

In brief, Defendant argues that the trial court failed to consider compelling

mitigating circumstances. However, he does not argue what compelling

circumstances the trial court should have taken into consideration. The imposition

of a maximum sentence in this case is a harsh sentence; however, considering the

facts contained in the record, and that Defendant failed to provide specific grounds

in his motion to reconsider sentence, it cannot be said that the trial court abused its

sentencing discretion. See State v. Wide, 09-1112 (La.App. 3 Cir. 4/14/10), 35 So.3d

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1176 and State v. West, 01-969 (La.App. 3 Cir. 12/12/01), 801 So.2d 619.

Accordingly, we find no merit to this assignment of error.

Our patent error review indicates the trial court failed to adequately advise

Defendant of the prescriptive period for filing for post-conviction relief as required

by La.Code Crim.P. art. 930.8. Therefore, the trial court is directed to inform

Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate

written notice to Defendant within ten days of the rendition of this opinion and to file

written proof that he received the notice in the record of the proceedings. See State

v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.

2/10/06), 924 So.2d 163.

In all other respects, the judgment of the trial court is affirmed.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH

INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

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