State of Louisiana v. Jonathan L.citizen

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-58

STATE OF LOUISIANA

VERSUS

JONATHAN L. CITIZEN

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 75,174
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Chief Judge Ulysses Gene Thibodeaux, J. David Painter, and
Shannon J. Gremillion, Judges.

AFFIRMED.

Edward J. Marquet
Louisiana Appellate Project
P.O. Box 53733
Lafayette, LA 70505-3733
(337)237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Jonathan L. Citizen

Frederick L. Welter, Assistant District Attorney
Fifteenth Judicial District, Acadia Parish
P.O. Box 288
Crowley, LA 70527-0288
(337)788-8831
COUNSEL FOR APELLEE:
State of Louisiana

PAINTER, Judge.

Defendant, Jonathan L. Citizen, appeals his conviction for distribution of

cocaine, a violation of La.R.S. 40:967(A). Finding no merit in any of his assignments

of error, we affirm his conviction.

FACTS AND PROCEDURAL HISTORY

On November 20, 2008, undercover narcotics officer 166, Jessica Laborde, was

working in Church Point, making controlled narcotics purchases. She worked with a

confidential informant for identification purposes only. Officer Laborde was fitted

with an audio device monitored by Lieutenant Kevin Trahan, Chief of Narcotics for

the Acadia Parish Sheriff‘s Office, and Sergeant Jackie Boddye.

Around 6:10 p.m., Lieutenant Trahan heard Officer Laborde make contact with

a male subject and purchase narcotics. The transaction was monitored but was neither

recorded nor transcribed. Officer Laborde met the subject in the parking lot of the

Oasis Club. She advised Lieutenant Trahan that she had purchased ―three pieces of

crack cocaine from Big Jonathan.‖ Officer Laborde and Lieutenant Trahan then met

at a secure location where she turned over the drugs to Lieutenant Trahan.

Lieutenant Trahan requested a photo lineup from the Louisiana State Police and

received black and white photocopies. He submitted a photo lineup to Officer

Laborde in his usual way, showing her six pictures and asking her if she can point out

the person from whom she bought the narcotics. Officer Laborde identified the

photograph of Defendant on March 20, 2009, some four months after the purchase.

To keep the undercover agents from being identified by the drug dealers,

Lieutenant Trahan normally waits four to six months after a drug buy to arrest a

suspect. During that time, he uses the undercover agents at different areas without

drug dealers knowing who they are.

Officer Laborde testified that she worked in the Church Point area purchasing

narcotics in undercover buys. She and her confidential informant met Lieutenant

Trahan at a secure location in clear weather around dusk on November 20, 2008.

They traveled to the Oasis Club, with Officer Laborde driving, to purchase the drugs.

She saw someone at the Oasis when she arrived and told him, ―I want $60 worth of

hard,‖ meaning crack cocaine. The man gave her three rocks of cocaine, and she gave

him $60. The hand-to-hand exchange took less than a minute. Officer Laborde left

the area, put the drugs in an evidence envelope, and gave them to Detective Trahan at

the secure location. Officer Laborde was trained as an undercover agent ―to identify

[suspects] so [she] remember[s] facial features, the face, the shape of the face, the

hair, the eyes, nose, the body size, the skin complexion.‖ She identified Defendant as

the suspect who sold her the drugs that evening.

Officer Laborde did not know Defendant prior to the transaction. She was

―very sure that it‘s him‖ when she chose his photograph from the lineup, and she was

also certain of his identity at trial. Under cross-examination, Officer Laborde

admitted that the confidential informant was not mentioned in the report and that she

had previously omitted the detail of reviewing the report prior to viewing the lineup

when she spoke to defense counsel. The informant was provided to Officer Laborde

by Lieutenant Trahan.

Although Officer Laborde was trained to notice details, she did not recall what

the suspect wore, how much money she was given to buy the drugs, or how many

transactions she made that day. She also admitted that she had made three or four

mistakes in identification before because ―[t]he evidence and the description given by

the victim was wrong.‖ She did not recall making an identification mistake in a

narcotics case. Officer Laborde confirmed that she and the confidential informant

―would be burnt and [they] wouldn‘t be able to make anymore [sic] buys‖ if an arrest

were made immediately after an undercover drug purchase. She confirmed the

average time for making a narcotics purchase was ―[a] minute or less.‖

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Laurette Rapp, forensic chemist at the Acadiana Crime Lab, testified as an

expert in forensic chemistry, controlled dangerous substances, and analysis of

controlled dangerous substances. She performed a number of tests, which she

described at trial, that all confirmed that the substance purchased by Officer Laborde

was crack cocaine. She performed the tests on material in a bag numbered N08-263

by the Acadia Parish Sheriff‘s Office, the same number placed on the bag containing

the substance purchased by Officer Laborde.

Defendant filed a motion for disclosure of the confidential informant‘s identity,

which was denied in a hearing immediately prior to the onset of trial. Defendant also

filed a motion to suppress evidence of the photo lineup, which was denied following a

hearing. Following a trial by jury, Defendant was convicted of distribution of

cocaine, a violation of La.R.S. 40:967(A). Defendant was adjudicated a multiple

offender and was sentenced to life in prison without benefit of probation, parole, or

suspension of sentence pursuant to La.R.S. 15:529.1.

On appeal, Defendant argues that he was entitled to know the identity of the

confidential informant, that the trial court erred in denying his motion to suppress the

photo lineup identification, and that the evidence was insufficient to sustain his

conviction. For the following reasons, we affirm Defendant‘s conviction.

Defendant also appealed his adjudication as a multiple offender under this

court‘s docket number 12-59. The two matters were consolidated for briefing

purposes only. Our affirmation of Defendant‘s adjudication as a multiple offender is

set forth in State v. Citizen, 12-59 (La.App. 3 Cir. ___/___/12), ___ So.3d ___.

DISCUSSION

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 no errors patent

in this case.

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Sufficiency of the Evidence

Defendant claims that the evidence at trial was insufficient to find him guilty

beyond a reasonable doubt. We consider this assignment of error first in accordance

with State v. Hearold, 603 So.2d 731 (La.1992).

The standard of review in a sufficiency of the evidence claim is ―whether,

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found proof beyond a reasonable doubt of each of the essential

elements of the crime charged.‖ State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d

108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007) (citing Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville, 448 So.2d 676, 678

(La.1984)). The Jackson standard of review is now legislatively embodied in

La.Code Crim.P. art. 821. It does not allow this court ―to substitute its own

appreciation of the evidence for that of the fact-finder.‖ State v. Pigford, 05-477, p. 6

(La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La. 10/4/96),

680 So.2d 1165; State v. Lubrano, 563 So.2d 847 (La.1990)). Our function is not to

assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116

(La. 10/16/95), 661 So.2d 442.

It is the role of the factfinder to weigh the credibility of witnesses. State v.

Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the

sufficiency evaluation standard of Jackson, ―the appellate court should not

second-guess the credibility determination of the trier of fact,‖ but rather, it should

defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270

(quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724,

726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder‘s
discretion and its role in determining the credibility of witnesses ―only to
the extent necessary to guarantee the fundamental due process of law.‖
State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the
sufficiency of the evidence supporting a conviction, an appellate court

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must preserve ―ʽthe factfinder‘s role as weigher of the evidence= by
reviewing ‗all of the evidence . . . in the light most favorable to the
prosecution.‘‖ McDaniel v. Brown, 558 U.S. ___, ___, 130 S.Ct. 665,
674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an
appellate court, the relevant question is whether, on the evidence
presented at trial, ―any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.‖ Jackson, 443 U.S. at
319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial
evidence, . . . this fundamental principle of review means that when a
jury ―reasonably rejects the hypothesis of innocence presented by the
defendant[ ], that hypothesis falls, and the defendant is guilty unless there
is another hypothesis which raises a reasonable doubt.‖ State v. Captville,
448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

Defendant was convicted of distribution of a Schedule II substance, cocaine, a

violation of La.R.S. 40:967(A). ―‗Distribute‘ means to deliver a controlled dangerous

substance . . . by physical delivery. . . .‖ La.R.S. 40:961(14). The evidence showed

that Officer Laborde purchased a substance from a suspect. The purchase was

monitored by Lieutenant Trahan and Sergeant Boddye. Officer Laborde identified the

suspect as Defendant from a photographic lineup and at trial. The substance was

identified by an expert at trial as crack cocaine. We find that the evidence sufficiently

showed that Defendant physically delivered cocaine to Officer Laborde. Therefore,

this assignment of error lacks merit.

Identity of the Confidential Informant

Defendant contends that the trial court erred by denying his request to learn the

identity of the confidential informant. He argues that the ―informant participated in

the drug transaction by calling out to the suspect and beckoning the suspect to

approach the vehicle occupied by the confidential informant and the undercover

narcotics agent.‖ Officer Laborde testified at the hearing on the motion to suppress

the photo lineup that the confidential informant ―called [the suspect] over to the

vehicle so that would be it.‖

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A defendant bears the burden of proving exceptional circumstances when

seeking to reveal a confidential informant‘s identity. State v. Coleman, 97-2802 (La.

4/24/98), 713 So.2d 440. Courts should ―consider the ‗particular circumstances of

each case, taking into consideration the crime charged, the possible defenses, the

possible significance of the informer‘s testimony, and other relevant factors.‘‖ Id. at

441 (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628 (1957);

citing State v. James, 396 So.2d 1281 (La.1981)).

In Coleman, a confidential informant provided information about the

defendant‘s activities and went with an undercover agent who made a controlled buy

of cocaine. Agents testified at trial that the confidential informant accompanied them

―‗to help identify‘ the defendant and to ‗show the area‘ while the supervising officers

positioned themselves out of sight.‖ Coleman, 713 So.2d at 441. The agents actually

made the exchange of money for drugs with the defendant; thus, the informant ―did

not participate directly in the transaction.‖ Id. The informant, however, was not the

only witness to the purchase; another agent was also present, and he corroborated

testimony related to the identity of the seller and the circumstances of the transaction.

The court held that the ―‗mere speculation that an eyewitness may have some

evidence helpful to defendant‘s case is not sufficient to show the specific need

required‘ for disclosure of a confidential informant‘s identity.‖ Id. at 442 (quoting

United States v. Jiles, 658 F.2d 194, 197 (3 Cir. 1981), cert. denied, 455 U.S. 923, 102

S.Ct. 1282 (1982) and State v. James, 396 So.2d 1281 (La.1981)).

The State‘s privilege to withhold the identity of a confidential informant is:

founded upon public policy and seeks to further and protect the public
interest and law enforcement by encouraging persons to supply
information to the police without fear of reprisal by the person to whom
the information pertains. Thus, the identity of an informer should be
made known to the accused only when a defendant‘s right to prepare his
defense outweighs the need for protection of the flow of information.

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James, 396 So.2d at 1284 (citing Roviaro, 77 S.Ct. 623). In James, although the

defendant claimed on appeal that the trial court erred by not ordering the State to

reveal the informant‘s identity, the defendant identified the informant at trial and

admitted that he had known the informant for seven years. Thus, he failed to show

any prejudice from the court‘s failure to order the identification.

In State v. Davis, 411 So.2d 434 (La.1982), the confidential informant

accompanied an undercover agent on four separate drug purchases. During the first

purchase, the informant pointed out the defendant to the agent and introduced them

but had no further participation in any of the purchases. The Louisiana Supreme

Court, citing Roviaro, 77 S.Ct. 623, held that ―the defendant failed to bear the burden

of demonstrating exceptional circumstances pertaining to his defense which would

gain the disclosure of the identity of the confidential informant.‖ Davis, 411 So.2d at

437. Citing James, 396 So.2d 1281, the court noted the trial court‘s ―great discretion

in making the determination of whether or not to disclose the identity of a confidential

informant.‖ Davis, 411 So.2d at 437.

Defendant cites State v. Fontenot, 524 So.2d 867 (La.App. 3 Cir. 1988) in

support of his effort to learn the informant‘s identity. Fontenot, however, involved an

informant who not only introduced the agent to the defendant at a bar but also spoke

briefly with the defendant outside the agent‘s presence. When the informant returned

to the agent‘s table, she told him that the defendant would try to get him a bag of

marijuana. This court found that the informant ―was not merely a bystander, or

onlooker, and her participation was more than merely furnishing a tip that enabled the

police to make an arrest.‖ Id. at 869. Rather, ―[w]hen she was alone with the

defendant at the bar, [she] helped arrange for a sale of marijuana to take place.‖ Id.

In this case, the facts show that the confidential informant was a bystander who

did no more than point out Defendant to Officer Laborde. He did not take part in the

transaction. The public‘s interest in protecting the identity of the informant outweighs

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Defendant‘s right to prepare his defense. La.Code Evid. 514. Further, we find that

Defendant‘s ―mere speculation‖ that the informant would help his case ―‗is not

sufficient to show the specific need required‘ for disclosure of a confidential

informant‘s identity.‖ Coleman, 713 So.2d at 442. Thus, this assignment lacks merit.

Suppression of Photo Identification Lineup

Defendant contends that the trial court erred in failing to suppress the photo

lineup identification by Officer Laborde.

An identification procedure is suggestive if it unduly focuses a
witness‘s attention on the suspect. State v. Neslo, 433 So.2d 73, 78
(La.1983); State v. Robinson, 386 So.2d 1374, 1377 (La.1980). Strict
identity of physical characteristics among the persons depicted in a
photographic array is not required; however, there must be sufficient
resemblance to reasonably test the identification. State v. Smith, 430
So.2d 31, 43 (La.1983); State v. Guillot, 353 So.2d 1005, 1008
(La.1977). The question for a reviewing court is to determine whether the
procedure is so conducive to irreparable misidentification that due
process was denied. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243,
2254, 53 L.Ed.2d 140 (1977); State v. Martin, 595 So.2d 592, 595
(La.1992); State v. Prudholm, 446 So.2d 729, 738 (La.1984). A
defendant attempting to suppress an identification must prove both that
the identification itself was suggestive and that there was a likelihood of
misidentification as a result of the identification procedure. State v.
Prudholm, 446 So.2d at 738; State v. Chaney, 423 So.2d 1092, 1098
(La.1982).

State v. Bright, 98-398, pp. 17-18 (La. 4/11/00), 776 So.2d 1134, 1145, post-

conviction relief granted, 02-2793, 03-2796 (La. 5/25/04), 875 So.2d 37.

Defendant‘s motion to suppress alleged that the identification procedures ―that

were necessarily and impermissibly suggestive and that were so conductive, under the

totality of the circumstances, to irreparable mistaken identification.‖ At the hearing of

the motion, the trial court found that the lineup was ―not suggestive in any way

relative to [Defendant].‖ The trial court also found that ―under the circumstances

there may be some issues as to the weight given; however, there is nothing

unconstitutional about the lineup as presented.‖

The lineup displayed the black and white photographs of six African-American

men who appear to be approximately the same age and build. Officer Laborde chose

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photo number three as depicting the person who sold the cocaine to her. At the

hearing of the motion, she testified that she did not recall it being hard to identify

Defendant from the lineup. She ―remembered what he looked like.‖ Officer Laborde

identified Defendant at trial and testified that she picked Defendant from the photo

lineup without any trouble. We find that the trial court correctly determined that the

lineup was not suggestive.

According to Bright, 776 So.2d 1134, both a suggestive lineup and the

likelihood of misidentification are necessary in order to show the trial court erred in

failing to suppress this evidence. Because the lineup was not suggestive, this

assignment of error lacks merit.

DECREE

For the foregoing reasons, Defendant‘s conviction is affirmed.

AFFIRMED.

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

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