State of Louisiana v. Marqule Craft

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-76

STATE OF LOUISIANA

VERSUS

MARQULE CRAFT

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 07-232799
HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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

AFFIRMED.

Thibodeaux, Chief Judge, concurs in part and dissents in part and assigns written
reasons.

Honorable J. Phillip Haney, District Attorney
Sixteenth Judicial Court
Angela B. Odinet, Assistant District Attorney
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana

Beth S. Fontenot
Louisiana Appellate Project
P. O. Box 3183
Lake Charles, LA 70602
(337) 491-3864
COUNSEL FOR DEFENDANT/APPELLANT:
Marqule Craft

Marqule Craft
Riverbend Detention Center
9450 Highway 65 South
Lake Providence, LA 71254
PRO SE
Marqule Craft

GREMILLION, Judge.

Defendant, Marqule Craft, was charged by bill of information with

possession of more than sixty, but less than two thousand, pounds of marijuana in

violation of La.R.S. 40:966(F)(1) and La.R.S. 14:27. A jury convicted him of

those offenses. Defendant was sentenced to serve seven years at hard labor. He

now appeals his conviction and sentence. We affirm.

FACTS

Deputy Jacques Leblanc of the St. Martin Parish Sheriff‘s Office conducted

a traffic stop on Interstate 10 at mile marker 114 on March 13, 2007, at around

1:48 p.m, when he observed a vehicle traveling in the left lane at approximately

sixty miles per hour in a posted seventy mile-per-hour speed zone. The deputy

observed numerous vehicles trying to pass the vehicle, and the stop was based on

the driver impeding the flow of traffic.

Defendant, the driver and sole occupant of the vehicle, could not produce a

driver‘s license. Deputy Leblanc asked him if he was driving under suspension,

and Defendant replied in the affirmative. Defendant understood the reason for the

stop, and he stated he was in a rented vehicle. When Deputy Leblanc followed

Defendant to the vehicle to peruse the rental paperwork, he immediately smelled a

strong odor of marijuana coming from the passenger side.

The rental paperwork indicated that the vehicle was overdue for return,

could only be operated in Texas, was rented by Geovonie Diez, and no additional

drivers were allowed. Deputy Leblanc confirmed the suspension of Defendant‘s

license via computer, and he requested backup because of the numerous criminal

indicators. Deputy Leblanc described Defendant as overly nervous, with shaking

hands and heavy breathing.

1

Deputy Leblanc explained the consent to search form to Defendant, who

indicated he understood it and could read and write English. Defendant and

Deputy Leblanc signed the form.

The search revealed a black duffle bag, a green duffle bag, and a black

suitcase in the trunk. The black bag contained numerous grey duct-taped packages

that Deputy Leblanc believed to be marijuana. Deputy Leblanc advised Defendant

he would be placed under arrest, and Defendant put his hands behind his back.

Deputy Leblanc then read Defendant his Miranda rights from a card in his pocket.

Defendant indicated that he understood his rights and said he would like to

cooperate.

Under cross-examination at trial, Deputy Leblanc testified that he did not

have Defendant read the Miranda rights back to him, and he did not ask Defendant

if he could hear him. Based on what Defendant said and his body language,

Deputy Leblanc determined Defendant ―appeared to be an every day person,‖ not

under the influence of alcohol. Defendant never indicated he could not hear or did

not understand his Miranda rights.

Defendant told Deputy Leblanc and his partner, Deputy Darryl Vernon, the

bundles were marijuana belonging to his brother. He said he worked for his

brother, and he purchased the marijuana with school tuition money. Defendant

said he was transporting the marijuana for his brother. The deputies took

Defendant to the St. Martin Parish Sheriff‘s Office.

At the Sheriff‘s Office, Defendant signed a ―Your Rights‖ form after Deputy

Leblanc read it to him. This form acknowledged his Miranda rights and included a

waiver of those rights.

2

Agent Chad Hazelwood, task force agent for the Drug Enforcement

Administration of the Department of Justice, was called to help in this

investigation. When he arrived at the Sheriff‘s Office, he was told Deputy Leblanc

had already read Defendant his Miranda rights. Agent Hazelwood understood

Defendant had already given a confession.

Defendant told Agent Hazelwood and Agent Jerry Stutes that ―he was

basically a mule . . . trafficking a load of [m]arijuana for a guy he identified as

Geovonie,‖ who was traveling in front of him when he was stopped. Defendant

understood what he was doing and voluntarily gave the information. Agent

Hazelwood did not know how long Defendant had been in the secured room where

he interviewed him, and he did not know if Defendant had been given anything to

eat or allowed to use the restroom. Defendant was awake, sober, and fully

coherent throughout the interview.

Defendant presented no witnesses on the motion to suppress. The trial court

determined:

[Defendant‘s] statement was made freely and voluntarily and without
coercion, and with the full understanding of his rights to remain to
[sic] silent, and the defendant waived his rights [sic] to remain silent
and gave a statement to the police that was made freely and without
duress, and the statement is admissible in the trial of the defendant.

Deputy Leblanc repeated his testimony to the jury. He told the jury that

Defendant signed the consent to search form and gave verbal permission for the

search of the vehicle, that he placed Defendant under arrest, that he read Defendant

his Miranda rights, and that Defendant stated he understood his rights. Defendant

told Deputy Leblanc the duffle bags contained approximately one hundred pounds

of marijuana. Defendant signed the rights form and waiver of rights at the

Sheriff‘s Office and again indicated he understood those rights.

3

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the trial court erred in admitting statements he made to

police and that the State failed to prove his statements were freely and voluntarily

made with a clear understanding of his Miranda rights. He states that ―it is

doubtful‖ he was able to adequately hear the reading of his rights and understand

them while standing next to interstate highway traffic. Further, he argues that the

State failed to show his valid waiver of Miranda rights regarding the statements he

made after arrival at the Sheriff‘s Office.

It is well-settled the ruling in Miranda v. Arizona, [384 U.S.
436, 86 S.Ct. 1602 (1966)] ―protects an individual‘s Fifth Amendment
privilege during incommunicado interrogation in a police-controlled
atmosphere.‖ State v. Leger, 05–0011, p. 13 (La.7/10/06), 936 So.2d
108, 124, citing State v. Taylor, 01–1638, p. 6 (La.1/14/03), 838 So.2d
729, 739. In Miranda, the Supreme Court defined ―custodial
interrogation‖ as ―questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.‖ Id., 384 U.S. at 444, 86
S.Ct. at 1602. Thus, before a confession or inculpatory statement
made during a custodial interrogation may be introduced into
evidence, the State must prove beyond a reasonable doubt that the
defendant was first advised of his Miranda rights, that he voluntarily
and intelligently waived those rights, and that the statement was made
freely and voluntarily and not under the influence of fear,
intimidation, menaces, threats, inducement, or promises. La.Code
Crim. Proc. art. 703(D); La. R.S. 15:451; [State v.] Lee, 05–2098 [p.
15 (La. 1/16/08), 976 So.2d 109,] 122. The admissibility of a
confession is a question for the trial court. Id. As with the testimony
relative to the physical evidence, the trial court‘s conclusions on the
credibility and weight of the testimony relating to the voluntary nature
of the defendant‘s confession are accorded great weight and will not
be disturbed unless they are not supported by the evidence. State v.
Benoit, 440 So.2d 129, 131 (La.1983). Whether or not a showing of
voluntariness has been made is analyzed on a case-by-case basis with
regard to the facts and circumstances of each situation. Id.

State v. Hunt, 09-1589, pp. 11-12 (La. 12/1/09), 25 So.3d 746, 754-55.

Louisiana Code of Criminal Procedure Article 703(G) requires the State ―to

introduce evidence concerning the circumstances surrounding the making of the

confession or statement for the purpose of enabling the jury to determine the
4

weight to be given the confession or statement.‖ The article also allows a

defendant to introduce the same evidence.

While the noise level standing next to an interstate highway is undoubtedly

significant, nothing in the record suggests it prevented Defendant from

understanding or voluntarily waiving his rights. Defendant told Deputy Leblanc he

could read and write English. Defendant signed the consent to search form. He

told Deputy Leblanc he understood each of his Miranda rights and said he would

like to cooperate. No evidence was presented, either during consideration of the

motion to suppress or at trial, to show traffic noise or anything else prevented

Defendant from understanding his rights and/or knowingly and voluntarily waiving

them.

The State showed that Defendant was presented with his Miranda rights in

written form at the Sheriff‘s Office. He signed the form in two places, first

indicating that he understood his rights and then indicating that he waived them.

He was placed in a room where Agent Hazelwood questioned him after being told

Deputy Leblanc had read Defendant his rights.

The State met its burden to ―affirmatively show that the confession or

statement was freely and voluntarily given and was not made under the influence

of fear, duress, menaces, threats, inducements or promises.‖ State v. Bordelon, 597

So.2d 147, 149 (La.App. 3 Cir.), writ denied, 600 So.2d 678 (La. 1992). The

record contains no indication of the length of time that passed between

Defendant‘s signing the waiver of his rights and his questioning by Agent

Hazelwood. Defendant presented no evidence at trial to support his argument on

appeal that such a lengthy time passed that a new advisement of his rights was

necessary. The State showed Defendant was properly advised of and waived his

5

rights, and Defendant presented no evidence to refute the waiver of his rights.

Nothing at the hearing or at trial suggests Defendant was held in the room for an

inordinate time or under circumstances of duress. This assignment of error lacks

merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the failure to preserve the DVD recording of the traffic

stop and his statement to Agent Hazelwood prevented him from fully confronting

the evidence used against him. Deputy Leblanc‘s vehicle had an audio/video

camera that recorded onto a hard drive and a disc. After seventy-two hours, the

hard drive automatically erased the information. Deputy Leblanc believed the

camera was recording onto the disc at the time of the stop, and he intended to

videotape the stop as he normally did. However, shortly before trial, he learned

that the equipment did not function properly and did not record. Deputy Leblanc

testified that the video would have shown the circumstances to which he testified

had it worked properly. The purportedly blank video was introduced into

evidence. Although an attempt was made to play it to the jury, the court reporter

indicated that she was not familiar with the recording program. Defendant had no

other way to play the DVD.1

The room where Defendant was interviewed at the Sheriff‘s Office was also

equipped with video and audio capabilities, but no recording was made. Deputy

Leblanc put him in the secured room and left him there.

When Agent Hazelwood arrived at the Sheriff‘s Office, he was briefed ―as to

the stop, the details of the stop, and the events that had led up to where they were

at that moment,‖ and he was introduced to Defendant. Agent Hazelwood told the

1
This court was also unable to view the video.
6

jury that he was brought into the case, based on Defendant‘s cooperation, to try to

identify persons that the drugs may have been going to, the extent of Defendant‘s

involvement, and from where the drugs originated. Agent Hazelwood was not

concerned with a video or audio taped statement because he was not trying to

obtain a confession, but to see where the drugs were going.

[A]bsent a showing of prejudice, a conviction will not be overturned
on the ground that the best evidence was not produced. [State v.
Gaskin, 412 So.2d 1007 (La.1982)]. It has been held that the
testimony of one who hears a confession is always best evidence of it.
People v. Vaughn, 155 Cal.App.2d 596, 318 P.2d 148 (1957).
Likewise, testimony by participants of what was said in a
conversation have been held as equally admissible as a tape of the
conversation to establish what was said. United States v. Gonzales–
Benitez, 537 F.2d 1051 (9th Cir.1976), cert. denied, 429 U.S. 923, 97
S.Ct. 323, 50 L.Ed.2d 291 (1976); United States v. Rose, 590 F.2d 232
(7th Cir.1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d
297 (1979). Louisiana courts have allowed officers to testify in the
place of playing taped video or audio recordings of confessions to the
jury.

State v. McGuffie, 42,069, p. 8 (La. App. 2 Cir. 8/1/07), 962 So.2d 1111, 1117, writ

denied, 07-2033 (La. 2/22/08), 976 So.2d 1283. The McGuffie defendant argued

that the trial court erroneously allowed a police officer‘s testimony about his

statements where the tapes of those statements had been lost. The second circuit

noted, ―The law does not require the production of nonexistent portions of a

confession or portions which cannot be recalled.‖ Id. at 1116 (citing State v.

Arnold, 466 So.2d 520 (La.App. 3 Cir.), writ denied, 470 So.2d 124 (La.1985)).

Defendant had ample opportunity at the hearing on the motion to suppress

and at trial to confront and cross-examine Deputy Leblanc and Agent Hazelwood

about any relevant evidence. Certainly a video of the stop and the interview would

have been helpful evidence. Its unavailability, however, does not create a

Confrontation Clause issue where full cross-examination occurred, and the jury

7

heard the testimony of those who had witnessed Defendant‘s confession. This

assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant reserved his right to file a supplemental brief regarding the trial

court‘s response to a question posed by the jury during deliberations. On February

15, 2012, this court ordered the court reporter to transcribe the portion of the jury

trial regarding this issue. The supplemental record was filed on March 6, 2012.

Defendant‘s counsel notified this court by letter dated March 14, 2012, that she

would not be filing a supplemental brief. Thus, this issue is deemed abandoned.

Uniform Rules—Courts of Appeal, Rule 2-12.4.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

As a pro se assignment of error, Defendant asks whether one can ―block

traffic when there is no traffic in the vicinity?‖ Deputy Leblanc testified at length

about how he observed Defendant near the 110 mile marker on Interstate 10

traveling in the left lane at 60 miles per hour, impeding the flow of other vehicles

that were unable to pass Defendant. The traffic stop occurred near the 114 mile

marker, after Deputy Leblanc observed Defendant‘s driving for approximately four

miles.

Nevertheless, Defendant claims on appeal ―there was no traffic in his

general vicinity for him to block.‖ Defendant did not raise this issue at trial, and

he cannot raise it for the first time on appeal. La.Code Crim.P. art. 841. This

assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Defendant further argues ―[d]efense counsel should have moved to suppress

the evidence that resulted from the search‖ on grounds that raw marijuana has no

8

strong odor, and ―[f]ailure to do so would constitute ineffective assistance.‖ He

further argues that ―denial of such a motion would be reversible error, showing that

defendant was prejudiced by said ineffectiveness.‖

The record shows that defense counsel did file a motion to suppress the

marijuana on grounds it was illegally seized without a warrant or consent, and no

probable cause existed for the traffic stop. At trial, defense counsel pointed out

that the marijuana found in the trunk was ―taped up like Fort Knox‖ so that it could

not be smelled. The record does not reveal that Defendant requested a

demonstration to the jury to show the marijuana had no odor, and it does not show

the trial court prevented such a demonstration from taking place. Indeed, in his

closing argument, defense counsel said, ―I took one of the blocks right there and

gave it to the deputy. I held it in front the jury. I said, ‗Can you smell it?‘‖ The

record does not reflect a factual basis for this issue. Ultimately, the jury found the

law enforcement officers‘ testimony more credible than Defendant‘s self-

proclaimed ability to conceal illegal contraband. We see no reason to disturb the

jury‘s finding, and we assign no merit to this argument.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues his seven-year sentence is excessive. Louisiana Code of

Criminal Procedure Article 881.1(A) and (E) requires a defendant to make or file a

motion to reconsider his sentence within thirty days of imposition of the sentence.

A defendant who fails to make or file such a motion is precluded from raising any

objection to the sentence on appeal. State v. White, 03-1535 (La.App. 3 Cir.

4/28/04), 872 So.2d 588; State v. Prudhomme, 02-511 (La.App. 3 Cir. 10/30/02),

829 So.2d 1166, writ denied, 02-3230 (La. 10/10/03), 855 So.2d 324. Defendant

did not make or file a motion to reconsider his sentence in the trial court.

9

Nevertheless, we review Defendant‘s argument as a bare claim of excessiveness.

State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682.

This court has set out a standard to be used in reviewing excessive sentence

claims:

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 [p.5] (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 [p. 3] (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. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d

1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative
purpose behind the punishment and a comparison of the sentences
imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766
So.2d 501. While a comparison of sentences imposed for similar
crimes may provide some insight, ―it is well settled that sentences
must be individualized to the particular offender and to the particular
offense committed.‖ State v. Batiste, 594 So.2d 1 (La.App. 1
Cir.1991). Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge ―remains in the best
position to assess the aggravating and mitigating circumstances
presented by each case.‖ State v. Cook, 95-2784 (La. 5/31/96), 674
So.2d 957, 958.

10

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ

denied, 03-562 (La. 5/30/03), 845 So.2d 1061.

Applying the Smith factors, the nature of Defendant‘s offense was not

violent, but it involved a large amount–approximately one hundred pounds–of

marijuana. The trial court stated that Defendant‘s presentencing investigation

report revealed one prior conviction for aggravated assault. However, the penalty

for aggravated assault does not include imprisonment at hard labor, and therefore,

is not a felony. La.R.S. 14:2(A)(4); 14:37(B). Thus, this is Defendant‘s first

felony conviction. The trial court sentenced Defendant to seven years at hard labor

and stated that it was an appropriate sentence considering the substantial amount of

marijuana involved.

The possible sentencing exposure for possession of sixty to two thousand

pounds of marijuana is five to thirty years in prison and a fine of fifty to one

hundred thousand dollars. La.R.S. 40:966(F)(1). The possible exposure for an

attempted offense is half the largest fine and/or half the longest term of

imprisonment for the completed offense. La.R.S. 14:27. Thus, the sentencing

range here is zero to fifteen years and/or a fine of fifty thousand dollars.

Given the large amount of marijuana Defendant was convicted of hauling

across our state, this mid-range sentence neither shocks our conscience nor

represents an abuse of the trial court‘s discretion.

DECREE

Defendant‘s conviction and sentence are affirmed.

AFFIRMED.

11

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-76

STATE OF LOUISIANA

VERSUS

MARQULE CRAFT

THIBODEAUX, Chief Judge, concurring in part and dissenting in part.

I agree with the majority that the defendant’s conviction should be

affirmed. I disagree with the imposition of a seven-year sentence at hard labor.

The cases relied upon by the majority are inapposite and do not

support its position. State v. White, 11-1059 (La.App. 3 Cir. 4/4/12), 87 So.3d 318

involved, as the majority acknowledges, a long-time felony offender. The

defendant in White had six previous felonies. Here, this defendant has no prior

felony convictions. In State v. Brown, 02-1382 (La.App. 3 Cir. 4/2/03), 842 So.2d

1181, writ denied, 03-1224 (La. 11/7/03), 957 So.2d 491, the defendant admitted

ownership of the marijuana. In fact, Brown referenced the comments of the trial

judge who said “this would be different if it was just a possession with intent to

distribute that, in a weak moment, you got some marijuana and transported it for

financial gain. This is, you grew this marijuana which took an extended period of

time and it involved more than just one weak moment.” Id. at 1184. In this case,

the defendant was charged with possession of marijuana, not possession with intent

to distribute. Second, in this case, unlike Brown, the defendant did not grow the

marijuana nor did he own it. He was simply acting as a “mule” in transporting the

marijuana for someone else.

The seven-year sentence is not proportionate to the severity of this

defendant’s crime and makes no meaningful contribution to any acceptable goal of

punishment. It simply results in adding to Louisiana’s reputation as having the

most prisoners per capita of any area in the world and the most prisoners with the

longest sentences.

For the foregoing reasons, I respectfully dissent in part.