State of Louisiana v. Anthony Daye

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1469

STATE OF LOUISIANA

VERSUS

ANTHONY DAYE

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT,
PARISH OF IBERIA, NO.11-102
HONORABLE EDWARD M. LEONARD, JR., DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

CONVICTIONS VACATED;
CONVICTION AFFIRMED; AND
SENTENCE VACATED AND
REMANDED WITH INSTRUCTIONS.

Anthony Daye
Louisiana State Prison
Angola, LA 70712
DEFENDANT: IN PROPER PERSON

Annette Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT-APPELLANT:
Anthony Daye

J. Phil Haney, District Attorney, Sixteenth Judicial District
Angela B. Odinet, Assistant District Attorney
St. Martin Parish Courthouse
415 Main Street
St. Martinville, LA 70582
(337) 394-2220
COUNSEL FOR THE STATE OF LOUISIANA

PAINTER, Judge.

Defendant, Anthony Daye, appeals his convictions on three separate drug-

related charges and the sentence of life imprisonment imposed after his

adjudication as a fifth felony offender. We find that the evidence was insufficient

to support his conviction on a transaction involving the proceeds from a drug

offense (a violation of La.R.S. 40:1401(A)), and, accordingly, we reverse that

conviction. We also find that Defendant‘s conviction on the responsive verdict of

possession of marijuana must be reversed for double jeopardy reasons. We affirm

the conviction for possession of marijuana, second offense. However, finding that

the single sentence of life imprisonment imposed is indeterminate, we vacate the

sentence and remand the matter to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

On August 10, 2010, Deputies Ben LaSalle and Wade Bergeron were

following a vehicle when they saw Defendant jump out of it and start running.

Deputy LaSalle saw that Defendant‘s right hand was underneath his shirt ―as if he

was concealing something.‖ Deputy Bergeron got out of the car and chased

Defendant as Defendant ran through a garage. Deputy Bergeron saw Defendant

stop at a vehicle in the garage and appear to throw something beneath it. Deputy

Bergeron stopped at the vehicle while Deputy LaSalle continued to chase

Defendant. Defendant was apprehended by two other officers in the area and was

quickly arrested by Deputy LaSalle. Pursuant to a search incident to arrest, Deputy

LaSalle found $1,551.00 in cash in Defendant‘s pocket.

According to Deputy LaSalle, Defendant told him that he wanted to go to

the narcotics office because he could give them information. Sergeant Jason

Comeaux, one of the officers assisting at the scene, testified that Defendant told

them that he wanted to talk to them about assisting in large-scale narcotics

investigations.

Before transporting Defendant to the narcotics office, Deputy LaSalle went

to the garage where Deputy Bergeron was waiting. Deputy Bergeron notified

Deputy LaSalle that he found a bag containing what he suspected to be marijuana

and a hand rolled marijuana cigarette in the same area that Deputy Bergeron saw

Defendant throw something. Once the evidence was seized, Defendant was

transported to the narcotics office. After advising Defendant of his rights, Deputy

LaSalle asked Defendant why he exited the vehicle and ran. Defendant replied, ―I

had some weed and didn‘t want to get caught with it. I knew ya‘ll were going to

stop us.‖ When Deputy LaSalle specifically asked Defendant if the bag of

marijuana and marijuana cigarette located in the carport were his, Defendant

answered, ―Yes, that was for me.‖ As for the money found on Defendant, Deputy

LaSalle asked Defendant if he had a job. Defendant responded, ―No, I just make a

little hustle.‖ Deputy LaSalle testified that based on his knowledge and experience

as a narcotics agent in Iberia Parish, Defendant‘s statement meant that he sold

drugs. Deputy LaSalle also testified that the $1,551.00 in cash found in

Defendant‘s pocket consisted of the following denominations: eleven one dollar

bills; six five dollar bills; nineteen ten dollar bills; and sixty-six twenty dollar bills.

Defendant was charged by bill of information with one count of possession

of marijuana with the intent to distribute, a violation of La.R.S. 40:966(A)(1), and

one count of a transaction involving proceeds from drug offenses, a violation of

La.R.S. 40:1041. 1 Defendant pled not guilty to the charges. Thereafter, the State

1
The bill of information erroneously cites La.R.S. 40:1049 instead of La.R.S. 40:1041.
This error is harmless, however, since the State filed an amended bill of information with the
correct statutory citation and since Defendant does not claim that he was misled by the erroneous
citation of La.R.S. 40:1049. See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d
2

filed an amended bill of information in which it charged Defendant with one count

of possession with the intent to distribute marijuana, a violation of La.R.S.

40:966(A)(1); one count of a transaction involving proceeds from drug offenses, a

violation of La.R.S. 40:1041(A); and one count of possession of marijuana, second

offense,2 a violation of La.R.S. 40:966(C).

The matter proceeded to trial, and on the first day, the State noted for the

record that it had filed the amended bill adding the third count of possession of

marijuana, second offense, and that Defendant needed to be formally arraigned on

the amended bill. Defendant pled not guilty to the amended bill. After a two-day

jury trial, Defendant was found guilty as follows: count one – guilty of the

responsive verdict of possession of marijuana; count two – guilty as charged of

transaction involving proceeds from drug offenses; and count three – guilty as

charged of possession of marijuana, second offense. Both counsel waived polling

of the jury. The State then filed a habitual offender bill charging Defendant with

five prior felonies, and Defendant pled not guilty. The trial court found Defendant

to be a fifth felony offender and following a sentencing hearing, sentenced

Defendant to a single sentence of life imprisonment.

Defendant is now before this court asserting three assignments of error

through counsel: 1) the evidence was insufficient to find Defendant guilty of count

two, transaction involving proceeds from drug offenses; 2) the trial court erred in

imposing a single sentence for three separate offenses; and 3) Defendant‘s

conviction of both possession of marijuana and possession of marijuana, second

offense, is a violation of double jeopardy. Defendant has also filed a pro se brief

1150, writ denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied, ___U.S. ____, 131 S.Ct. 932
(2011).
2
The second offense charge resulted from a prior conviction unrelated to these
proceedings.
3

alleging two assignments of error, both of which involve his right to confront the

analyst who tested the marijuana in the present case.

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. We find that there is an error patent in that

the sentence is indeterminate. Since Defendant raised this as error, it is discussed

below.

Additionally, the record does not indicate that a sentence was imposed on

count one, possession of marijuana; however, since we are vacating this

conviction, no sentence need be imposed.

Sufficiency of the Evidence

In his first assignment of error, Defendant contends that there was

insufficient evidence to support his conviction on count two, a transaction

involving the proceeds from a drug offense, a violation of La.R.S. 40:1041(A).

Defendant argues that the State limited its charge to the specific subsection of

La.R.S. 40:1041 cited in the bill of information - subsection A - and that the

evidence was not sufficient to convict Defendant of that subsection.

In the first bill of information filed against Defendant, the State charged

Defendant with committing a transaction involving the proceeds from a drug

offense without specifying a violation of any subsection in particular:

Count #2: ON OR ABOUT AUGUST 30, 2010, IN THE PARISH
OF IBERIA, ANTHONY DAYE DID KNOWINGLY OR
INTENTIONALLY COMMIT R.S. 40:1049 TRANSACTION
INVOLVING PROCEEDS FROM DRUG OFFENSES, by any
person knowingly or intentionally conducting a financial transaction
involving proceeds known to be derived from a violation of R.S.
40:966 et seq.

4

Louisiana Revised Statutes 40:1041 sets forth four different ways in which the

offense may be committed:

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.

B. It is unlawful for any person knowingly or intentionally to give,
sell, transfer, trade, invest, conceal, transport, maintain an interest
in, or otherwise make available anything of value known to be for
the purpose of committing or furthering the commission of any
violation of R.S. 40:966 et seq.

C. It is unlawful for any person knowingly or intentionally to direct,
plan, organize, initiate, finance, manage, supervise, or facilitate the
transportation or transfer of proceeds known to be derived from
any violation of La.R.S. 40:966 et seq.

D. It is unlawful for any person to knowingly or intentionally receive
or acquire proceeds derived from any violation of R.S. 40:966 et
seq., or to knowingly or intentionally engage in any transaction
involving proceeds from any such violations. The provisions of
this Section shall not include any transaction between an individual
and his attorney, that is necessary to preserve that individual‘s
right to representation by counsel, as guaranteed by the Sixth
Amendment of the United States Constitution, and Article I
Section 13 of the Constitution of Louisiana. However, this shall
not affect the right of the state to seek and obtain forfeiture of any
proceeds derived from a violation of R.S. 40:966 et seq., as
provided by R.S. 40:2601 through 2622.

Although the State did not specify a subsection of La.R.S. 40:1041 in the first bill

of information, it changed the wording when it filed the amended bill of

information to specify a particular subsection:

Count #2: R.S. 40:1041A TRANSACTIONS INVOLVING
PROCEEDS FROM DRUG OFFENSES, IN THE PARISH OF
IBERIA, Anthony Daye, on or about August 30, 2010, did knowingly
or intentionally 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.
5

Defendant contends that the State limited itself to proving subsection A by

citing only that subsection in the bill of information, thereby failing to

conjunctively charge the offense as required by La.Code Crim.P. art. 480, which

provides:

If an offense may be committed by doing one or more of
several acts, or by one or more of several means, or with one or more
of several intents, or with one or more of several results, two or more
of such acts, means, intents, or results may be charged conjunctively
in a single count of an indictment, or set forth conjunctively in a bill
of particulars, and proof of any one of the acts, means, intents, or
results so charged or set forth will support a conviction.

In addition to choosing to charge Defendant with only subsection A, Defendant

contends that the State failed to object when the trial court instructed the jury on

that subsection only. The trial court instructed the jury as follows:

Under Count 2, it is unlawful for any person knowingly or
intentionally to conduct a financial transaction involving proceeds
known to be derived from a drug offense 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.

Thus, in order to find the defendant guilty as charged under
Count Number 2, you must find that the defendant knowingly or
intentionally conducted a financial transaction with proceeds known
to be derived from a drug offense, when the transaction is designed in
whole or in part to conceal or disguise the nature, location, source,
ownership, or the control of proceeds known to be derived from such
violation, or to avoid a transaction reporting requirement.

In making his argument, Defendant attempts to distinguish this court‘s

opinion in State v. V.L.G., 11-634, 2011 WL 6077831, wherein this court found no

merit to an insufficiency of the evidence claim similar to the present Defendant‘s

claim. The defendant in V.L.G. argued that the State limited itself to charging the

defendant with committing an aggravated rape wherein the victim was prevented

from resisting ―by threats of great and immediate bodily harm, accompanied by

apparent power of execution.‖ La.R.S. 14:42(2). According to the defendant in
6

V.L.G., the State did not conjunctively charge the defendant in accordance with

La.Code Crim.P. art. 480. Instead, the State specifically charged that the victim‘s

lack of consent was due to the defendant‘s force. Additionally, the defendant in

V.L.G. argued that the jury instructions ―included three recitations relating to force

or threats of force.‖ V.L.G., WL 6077831, at *3. Claiming the element of force

was not proven beyond a reasonable doubt, the defendant in V.L.G. asserted that

the evidence was insufficient to convict him of aggravated rape.

Although the court in V.L.G. agreed that the evidence was insufficient to

prove that the victim was prevented from resisting V.L.G.‘s acts by threats of great

and immediate bodily harm accompanied by apparent power of execution as

alleged in the indictment, this court found that the real issue was notice:

We agree there was insufficient evidence to prove D.C. was
prevented from resisting the Defendant‘s acts by threats of great and
immediate bodily harm accompanied by apparent power of execution
as alleged in the indictment. This court‘s inquiry should not end here.
The actual issue in the case at bar is whether the Defendant was
adequately informed of the charges against him.

The Defendant did not file a motion for bill of particulars nor
did he allege, pre-trial, that the indictment did not provide adequate
notice of the charges. The indictment clearly indicated D.C. was
under the age of thirteen at the time the offense at issue were
committed, and the Defendant was fully informed of the facts the
State intended to show on the charges of aggravated rape. Further,
there was no objection to the sufficiency of the indictment at trial.

Id. at p. 7 (citations omitted). Thus, the court found V.L.G.‘s insufficiency of the

evidence assignment lacked merit.

Defendant in the present case argues that V.L.G. is distinguishable because

the indictment filed against V.L.G. indicated in several places that the victim was

under the age of thirteen, another way in which the victim‘s lack of consent could

be proved under La.R.S. 14:42; but, in the present case, Defendant argues that

there is nothing in the charging instrument to notify Defendant that another

7

subsection of La.R.S. 40:1041 could be used. Defendant also attempts to

distinguish V.L.G. because in that case, the trial court instructed the jury on four

different ways aggravated rape could be committed, including the victim‘s age, but,

in the present case, the trial court instructed the jury as to subsection A only.

We find these attempts to distinguish V.L.G. without merit because the

prosecutors in both this case and in V.L.G. expanded the charging instrument by

making certain statements in both voir dire and arguments to the jury. The

prosecutor in V.L.G. informed prospective jurors during voir dire that one of the

aggravating factors at issue was the fact that the victim was under the age of

thirteen. Also, during closing argument, the prosecutor asserted that it had proven

that the victim was under the age of thirteen when raped by V.L.G. In the present

case, the prosecutor stated the following during voir dire:

Mr. Daye is also charged with proceeds involving transactions from
drug offenses. I have to prove to you beyond a reasonable doubt that
charge, that he possessed money. And that that money that he
possessed was the proceeds from illegal drug transactions. On that
same date this gentleman possessed money and that the money
possessed was derived from drug transactions.

Also, during opening and closing argument, the State referred to the money found

on Defendant as ―drug proceeds‖ and ―proceeds from illegal drug transactions.‖

This language tracks language used in subsection D of La.R.S. 40:1041:

D. It is unlawful for any person to knowingly or intentionally receive
or acquire proceeds derived from any violation of R.S. 40:966 et
seq., or to knowingly or intentionally engage in any transaction
involving proceeds from any such violations.

Considering Defendant‘s failure to object to the State‘s statement in voir dire and

argument, this court concludes that Defendant was put on notice that the State was

proceeding under subsection D.

The fourth circuit addressed a very similar issue in State v. Williams, 02-260

(La.App. 4 Cir. 3/12/03), 842 So.2d 1143, writ denied, 03-1991 (La. 1/16/04), 864
8

So.2d 625, and writ denied, 06-1583 (La. 3/23/07), 951 So.2d 1096, and concluded

that the real issue was whether the defendant was notified of the charges against

him rather than what was set forth in the charging instrument. In Williams, the bill

of information charged Williams with second degree kidnapping under subsection

B(1) of La.R.S. 14:44.1. Although the evidence was not sufficient to find

Williams guilty of B(1), the fourth circuit found that the evidence was sufficient to

find Williams guilty of another subsection of the second degree kidnapping statute

– B(3). Thus, the court was faced with deciding ―whether the defendant‘s

conviction can be upheld based upon subsection B(3) even though the subsection

alleged in the bill of information was subsection B(1).‖ Id. at 1147. Finding that

Williams‘ conviction could be upheld, the court noted that Williams‘ attorney was

present at a motion to suppress hearing held five months prior to trial, at which

evidence to support subsection B(3) was introduced. The court also noted that it

was ―apparent that defense counsel had prepared his case based upon the

assumption that the defendant had been charged under subsection B(3), not B(1) as

alleged in the bill of information.‖ Id. at 1148. Williams‘ defense counsel

actually moved for a directed verdict at the conclusion of the case, arguing that he

had arrived that morning under the belief that the State was proceeding under B(3)

only to realize at some point that the bill of information charged Williams under

B(1). Thus, the fourth circuit concluded that ―this is not a case where counsel had

been misled as to what evidence the State was planning to present and was

unprepared to meet the allegations in the bill of information.‖ Id.

This court finds that the State‘s assertions to the jury during voir dire and

arguments were sufficient to put Defendant on notice that it was proceeding under

a different subsection, namely subsection D. As set forth above, subsection D of

La.R.S. 40:1041 provides in pertinent part:
9

It is unlawful for any person to knowingly or intentionally receive or
acquire proceeds derived from any violation of R.S. 40:966 et seq., or
to knowingly or intentionally engage in any transaction involving
proceeds from any such violations.

Under this subsection, the State was simply required to prove that Defendant

knowingly and intentionally received proceeds derived from a violation of La.R.S.

40:966-971.

The standard for reviewing the sufficiency of the evidence is as follows:

―[T]he appellate court must determine that the evidence,
viewed in the light most favorable to the prosecution,
was sufficient to convince a rational trier of fact that all
of the elements of the crime had been proved beyond a
reasonable doubt.‖ State v. Captville, 448 So.2d 676,
678 (La.1984).

State v. Desoto, 07-1804, p. 7 (La. 3/17/09), 6 So.3d 141, 146.

In his brief, Defendant argues that the State failed to prove that the money

found on him was derived from the sale of a controlled dangerous substance:

At the time of the stop in question, the officers did not observe
any possible drug transaction although they were riding around
looking at different targets. They chased Mr. Daye because he fled
from a car they were following for a possible traffic violation, with his
hand beneath his shirt. . . . Additionally, none of the officers testified
that the marijuana introduced at trial was packaged in a manner for
individual sale and the jury actually declined to return a verdict of
guilty of possession with the intent to distribute marijuana – instead,
they returned the responsive verdict of simple possession. The
presence of money with an illegal substance alone does not prove that
the money was derived from the sale of an illegal substance.
Likewise, even an admission that a defendant makes a little hustle
does not prove beyond a reasonable doubt that the money seized from
his person was obtained from selling drugs. Mr. Daye was not asked
how he obtained the money in his pocket; instead, he was asked if he
had a job. He was not observed making a drug deal, the drugs found
underneath the car were not packaged for individual sale, there was no
marked money found on Mr. Daye and, there was no testimony
introduced that any inference could be drawn from the denominations
of the money seized from Mr. Daye. The State failed to prove that the
money seized from Anthony Daye was derived from distributing
illegal drugs.

10

In two cases involving La.R.S. 40:1041, this court required direct evidence

connecting the money found on a defendant with an actual drug transaction

witnessed by the police or an informant. In State v. Edwards, 06-850 (La.App. 3

Cir. 6/13/07), 963 So.2d 419, this court found that the evidence was insufficient to

convict Edwards of conducting a transaction involving proceeds from a drug

offense when there was no money seen changing hands, and the $305.00 found in

Edwards‘ pocket was not an unusually large amount of cash. The court made this

determination despite the fact that the police received information from a

confidential informant ―for about ten years which indicated that the defendant was

transporting drugs from Baton Rouge, Louisiana to New Iberia, Louisiana for

street sale.‖ Id. at 421. The police also 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.‖ Id. Like the present

Defendant, Edwards was arrested after fleeing the scene. The officers seized

$305.00 from Edwards, but no drugs or weapons were found on Edwards‘ person.

The officers in Edwards did, however, seize crack cocaine from inside the metal

clothesline pipe and from underneath the house – both places in which Edwards

was observed hiding narcotics. Faced with these facts, this court reversed

Edwards‘ conviction, stating, ―because no money was seen changing hands and

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

evidence was insufficient to find the Defendant guilty of this charge.‖ Edwards,

963 So.2d at 426.

Relying on Edwards, this court again found insufficient evidence in State v.

Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La.

6/25/10), 38 So.3d 336, cert. denied, ___ U.S. ___ , 131 S.Ct. 932 (2011). In

Johnlouis, the police discovered a large bundle of money in Johnlouis‘ pocket and
11

two rocks of crack cocaine in Johnlouis‘ car. A police officer testified that he did

not know how Johnlouis got the money but that Johnlouis said he was not

employed at that time. The court in Johnlouis noted that a photograph of the cash

found on Johnlouis was admitted into evidence and that there was ―well in excess

of $1,000.00 dollars.‖ Id. at 1159 n.2. Because ―there was no testimony regarding

money changing hands and no testimony regarding the amount of cash on the

Defendant‘s person,‖ this court found that the evidence was insufficient to convict

Johnlouis of transactions involving proceeds derived from drug offenses. Id. at

1159.

In the present case, as in both Edwards and Johnlouis, there is no evidence

that anyone saw money changing hands. Furthermore, even though the jury heard

testimony regarding the denominations of the cash found on Defendant, no

testimony was presented as to any inference that could be drawn from these

denominations. The money seized from Defendant was $1,551.00. The money

seized from Johnlouis was ―well in excess of $1,000.00 dollars.‖ Thus, the amount

of money seized in this case is not enough to distinguish it from Edwards or

Johnlouis.

The State argues that there was sufficient evidence to find that the money

possessed by Defendant was derived from a drug transaction, because the officers

found money on Defendant and found illegal drugs in close proximity to

Defendant. According to Edwards and Johnlouis, however, this is not sufficient to

prove that the money was derived from a drug transaction. The State additionally

contends that Defendant admitted that the money in his possession was from

―making a little hustle.‖ This statement is not correct. According to Deputy

LaSalle, the Defendant said he ―made a little hustle‖ when asked if he had a job.

12

Although Defendant‘s statements to police that he wanted to help them with

large-scale drug transactions and that he made a ―little hustle‖ appear to indicate

that Defendant has been involved in drug transactions, in light of this court‘s

opinions in Edwards and Johnlouis, this evidence is not sufficient to show that the

money found on Defendant was derived from a drug transaction. Thus, we find

that the evidence was insufficient to support Defendant‘s conviction and hereby

vacate the conviction on count two, a transaction involving proceeds from a drug

offense.

Double Jeopardy Claim

By this assignment of error, Defendant alleges that he was subjected to

double jeopardy when he was convicted of the offense of possession of marijuana,

second offense, and the responsive verdict of possession of marijuana, as the two

charges arose out of the same criminal episode and were based upon the same

marijuana.

In State v. Archield, 09-1116, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d 434,

438, writ denied, 10-1146 (La. 5/20/11), 63 So.3d 972, this court set forth the

analysis for reviewing a double jeopardy claim:

Both the United States and Louisiana Constitutions prohibit double
jeopardy; the imposition of multiple punishments for a single
criminal act. See U.S. Const. amend. V; La. Const. art. 1, § 15. See
also, La.Code Crim.P. art. 591. Louisiana courts use two methods,
the ―Blockburger Test‖ and the ―same evidence test‖, to determine
whether double jeopardy exists. State v. Williams, 07–931
(La.2/26/08), 978 So.2d 895.

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct.
180, 182, 76 L.Ed. 306 (1932), the United States Supreme Court
interpreted the Fifth Amendment's prohibition of double jeopardy and
enunciated the following test to be employed by the federal courts, as
follows:

The applicable rule is that, where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
13

whether there are two offenses or only one is whether
each provision requires proof of an additional fact which
the other does not.

In interpreting Article 1, Section 15 of the Louisiana Constitution,
Louisiana courts have also used the broader ―same evidence test‖
which provides:

If the evidence required to support a finding of
guilt of one crime would also have supported conviction
of the other, the two are the same offense under a plea of
double jeopardy, and a defendant can be placed in
jeopardy for only one. The test depends on the evidence
necessary for conviction, not all the evidence introduced
at trial.

State v. Cotton, 00–850, p. 5 (La.1/29/01), 778 So.2d 569, 573
quoting State v. Steele, 387 So.2d 1175, 1177 (La.1980).

Defendant argues, and we agree, that a violation of double jeopardy occurred

because the same evidence (i.e., the same marijuana) was used to convict him of

both possession with the intent to distribute marijuana and possession of marijuana,

second offense. In his brief, Defendant states:

In the case at bar, the Appellant was charged with possession
with the intent to distribute marijuana found under a car and with
possession of marijuana, second offense for this same marijuana. It
matters not that a small portion of the marijuana was contained within
a blunt or that the lab listed it and weighed the blunt separate from the
other marijuana, as all of the marijuana seized on August 30, 2010,
was in the same bag. No one testified that the evidence was seized
from different locations or that it was even bagged separately. When
asked what was found when they searched the carport, Agent LaSalle
testified ―A bag containing suspected marijuana and also like a hand
rolled marijuana cigarette.‖ (II, p. 264). When questioned further
about the location where the contraband was discovered, Deputy
Bergeron referred to the contraband in the singular – ―it.‖ (II, p. 293).
There were not two separate and distinct acts. The marijuana in the
bag was used to prove both that Mr. Daye possessed it with the intent
to distribute it (which the jury declined to find with regard to the
intent to distribute element) and to also prove he possessed it, having
previously been convicted of possession of marijuana. The same
conduct which formed the basis of the offense of possession with the
intent to distribute marijuana, on which the jury returned the
responsive verdict of possession of marijuana, was based on the same
conduct which formed the basis of the possession of marijuana,
second offense.

14

In City of Baton Rouge v. Ross, 94-695, p. 17 (La. 4/28/95), 654 So.2d 1311,

1322, the supreme court described the ―same evidence‖ test as a focus ―upon the

actual physical and testimonial evidence necessary to secure a conviction.‖ The

supreme court further stated that ―under the ‗same evidence‘ test our concern is

with the ‗evidential focus‘ of the facts adduced at trial in light of the verdict

rendered, i.e. how the evidence presented goes to satisfy the prosecution‘s burden

of proof.‖ Id. at 1322 (footnote omitted) (citing State v. Miller, 571 So.2d 603, 606

(La.1990) and State v. Powell, 598 So.2d 454, 470 (La.App. 2 Cir.), writ denied,

605 So.2d 1089 (La.1992)).

In the present case, the bill of information does not distinguish between the

marijuana used to charge Defendant with possession with the intent to distribute

marijuana (for which the jury returned a responsive verdict of possession of

marijuana) and the marijuana used to charge Defendant with possession of

marijuana, second offense. At trial, however, the State indicated that the

―marijuana‖ relied upon for each offense was different. In its opening statement,

the State told the jury that ―[o]n the date that [Defendant] possessed this marijuana

blunt[,] he was a second-offender under the law because of his prior conviction.‖

The State went on to argue to the jury that Defendant ―fled from the officers

because he possessed that marijuana, that he had that bag of marijuana with an

intent to sell . . . .‖ In closing argument, the State again argued that Defendant

―intended to distribute that bag of marijuana.‖ Finally, the State introduced the

―bag of marijuana‖ and the ―blunt of marijuana‖ in two different exhibits – State

Exhibit One is the bag of marijuana and State Exhibit Two is a bag with ―blunt of

marijuana.‖ Defense counsel alleges that the marijuana seized in the instant case

was in the same ―bag,‖ and the testimony introduced at trial is unclear as to

whether the blunt of marijuana was contained within the bag when the marijuana
15

was found. Deputy LaSalle testified that he located a ―bag containing suspected

marijuana and also like a hand rolled marijuana cigarette‖ under the carport.

However, it is clear from the record that Defendant only made one throwing

motion.

In support of his double jeopardy argument, Defendant contends that his

case is similar to State v. Falcone, 383 So.2d 1243 (La.1980). In Falcone, the

supreme court found that double jeopardy barred Falcone from a second

prosecution in Washington Parish for the possession with the intent to distribute

the same marijuana for which Falcone had been previously convicted in Livingston

Parish. In reaching this decision, the court noted that the bill of information filed

in Livingston Parish specifically charged Falcone with ―a continuous offense

which involved possession and transportation of marijuana throughout several

parishes.‖ Id. at 1245. Concluding that the state could not prosecute Falcone for

possession of the marijuana in Washington Parish since Falcone had been

prosecuted in Livingston Parish for marijuana in both Livingston and Washington

Parishes, the supreme court specifically stated that it would not ―reach the issue of

whether the state might have been able to prosecute these defendants for a separate

chargeable offense in Washington Parish had the Livingston prosecution not

included the marijuana possessed in Washington Parish . . . .‖ Id.

We find the present case to be analogous to State v. LeBlanc, 618 So.2d 949

(La.App. 1 Cir. 1993), writ denied, 95-2216 (La. 10/4/96), 679 So.2d 1372. In that

case, the first circuit found that LeBlanc‘s convictions for possession in excess of

400 grams of cocaine and distribution of the same cocaine violated his

constitutional protection against double jeopardy. In making this finding, the court

stated:

16

In the instant case, the defendant was charged with possession
in excess of 400 grams of cocaine and distribution of the same
cocaine. He was found guilty of possession in excess of 400 grams of
cocaine and of attempted distribution of cocaine. The state introduced
evidence that the defendant attempted to sell an undercover officer a
package of cocaine in excess of 400 grams. The same package of
cocaine from that transaction was used by the state as evidence to
convict the defendant of possession of cocaine in excess of 400 grams.
No other cocaine was introduced into evidence; nor was there any
other evidence presented about another drug transaction or another
time that the defendant possessed cocaine. The defendant‘s
convictions for attempted distribution of cocaine and possession of
cocaine in excess of 400 grams arose of the same transaction and the
same package of cocaine was used as the evidence for both
convictions.

Id. at 957.

Accordingly, this court finds that the evidence used to convict Defendant of

the first count of possession of marijuana and the evidence used to convict

Defendant of possession of marijuana, second offense, was the ―same evidence‖

for double jeopardy purposes. The bill of information does not distinguish

between the marijuana used to charge both offenses, and the actual physical and

testimonial evidence do not support a finding that the marijuana used to find

Defendant guilty on both counts were two completely separate findings. Having

found a violation of double jeopardy, we reverse the conviction of the less severely

punishable offense, i.e. count one, possession of marijuana. Id., citing State ex rel.

Adams v. Butler, 558 So.2d 552 (La.1990). The conviction for the more severely

punishable offense of possession of marijuana, second offense is affirmed.

Sentencing Claim

By this assignment of error, Defendant alleges that resentencing is required

because the trial court failed to impose a sentence on each count and failed to

specify on which count the enhanced sentence was being applied. Even though we

have vacated one of Defendant‘s convictions for insufficient evidence and vacated

another for double jeopardy reasons, we find merit in this assignment or error.
17

On the same date of Defendant‘s convictions, the State filed a habitual

offender bill charging Defendant with five prior felonies and listing both of the

felonies for which Defendant was convicted by the jury in this case – possession

with the intent to distribute, second offense; and transactions involving proceeds

from drug offenses. Although the State did not specifically allege which count or

counts it was seeking to enhance, Defendant concedes that the State sought

enhancement of both felony convictions. Defendant pled not guilty to the habitual

offender bill, but the trial court found Defendant to be a fifth felony offender, and

after a sentencing hearing, it sentenced Defendant to a single sentence of life

imprisonment.

The State argues that if this court finds error in the sentence imposed, there

is no need to vacate the life sentence imposed and remand for resentencing. Rather,

the State argues, this court should ―simply remand the matter for clarification from

the trial court as to which felony sentence was enhanced, to which the life sentence

applied.‖ The State contends that the trial court should then simply impose a

sentence on the other count.

In State v. Webster, 3 95-605, p. 9 (La.App. 3 Cir. 11/2/95), 664 So.2d 624,

630, this court addressed an issue similar to the one in the present case:

By these assignments of error, the defendant contends the trial
court erred in failing to specify which of the four convictions was
being enhanced at sentencing and in failing to sentence him on the
additional three counts within a reasonable amount of time.

The defendant notes that the trial court did not specify which
armed robbery conviction was being enhanced. Nor did the court
sentence the defendant on the remaining three convictions. The
defendant further contends the trial court should be divested of
jurisdiction on the three remaining counts as he will not be sentenced
on them within a reasonable amount of time.
3
At the time of this decision, it was permissible to enhance only one of multiple
convictions arising out of a single criminal episode. However, the supreme court has since held
that La.R.S. 15:529.1 does not prohibit enhancing multiple sentences obtained the same date
arising out of a single criminal episode. State v. Shaw, 06-2467 (La. 11/27/07), 969 So.2d 1233.
18

We agree, that the trial court erred in that the record does not
reveal which of defendant‘s four armed robbery convictions was
being enhanced. Additionally, the trial court should have imposed a
separate sentence on each of the three remaining convictions.
Therefore, defendant‘s sentence is indeterminate as he was convicted
of four counts of armed robbery and only a single sentence was
imposed. See State v. Bessonette, 574 So.2d 1305 (La.App. 3
Cir.1991); La.Code Crim.P. art. 879. Accordingly, defendant‘s
sentence will be vacated and the case remanded to the trial court for
clarification as to which count is being enhanced and for imposition of
separate sentences on the remaining three counts. See State v. Parker,
593 So.2d 414 (La.App. 1 Cir.1991).

The life sentence imposed upon Defendant is hereby vacated as

indeterminate when rendered, and the case is remanded for resentencing on the

remaining conviction for count three. We find that resentencing is necessary

despite the fact that only one conviction remains. The State sought enhancement

under the non-mandatory sentencing provision for a fourth felony offender. The

trial judge has discretion to impose a sentence of twenty years to life. Thus, the

fact that two of Defendant‘s convictions are being vacated may be considered by

the trial judge when imposing the sentence on the remaining felony, possession of

marijuana, second offense.

Confrontation Clause Claim

In his first pro se assignment of error, Defendant claims that his Sixth

Amendment confrontation rights were violated by the State‘s introduction of the

testimony of a surrogate analyst who did not perform the lab testing on the

marijuana introduced in this case and who did not sign the lab certification report.

As authority, Defendant cites the United States Supreme Court case Melendez-

Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009) and subsequent cases

addressing this confrontation clause issue. Because defense counsel stated for the

record that she did not object to the surrogate‘s testimony, Defendant is precluded

from now raising this issue on appeal.

19

Before jury selection, the State informed the trial court that the forensic

chemist who actually tested the marijuana in this case, Bryant Jones, was no longer

with the Acadiana Crime Lab. According to the State, Mr. Jones had moved to a

crime lab in Texas. The State informed the trial court that it had spoken with

defense counsel, and defense counsel had no objection to Kevin Ardoin, the

Director of Acadiana Crime Lab, testifying in lieu of Mr. Jones. Defense counsel

agreed with the State‘s assertion. The State described Mr. Ardoin‘s role at the

Acadiana Crime Lab as follows:

Kevin Ardoin, who is the Director of Acadiana Crime Lab and who is
also a forensic chemist who tests controlled substances at the lab,
oversees the testing of controlled substances at the lab, does peer
review of employees who do testing on controlled substances. His
name, at this time, is stamped on top of the lab report.

In State v. Marcantel, 98-825 (La.App. 3 Cir. 12/22/99), 756 So.2d 366, writ

denied, 00-208 (La. 8/31/00), 766 So.2d 1274, this court found that Marcantel

waived his right to confront the victim by stipulating to the victim‘s testimony via

closed-circuit television. This court reasoned, ―It is well-settled that this right is

waivable.‖ Id. at 373. Since Marcantel waived his right to confront the victim,

this court stated that he could not raise it for the first time on appeal.

Defendant in the present case waived his right to confront Mr. Jones, the

analyst who tested the marijuana in the present case, by agreeing to allow Mr.

Ardoin to testify in lieu of Mr. Jones. Consequently, Defendant is precluded from

now raising this issue on appeal.

Ineffective Assistance of Counsel Claim

In this pro se assignment, Defendant alleges that his trial counsel was

ineffective for failing to consult with him before she agreed to the testimony of Mr.

Ardoin in lieu of the testimony of Mr. Jones. Defendant contends that had his

counsel objected to Mr. Ardoin‘s testimony, the trial court would have halted all
20

proceedings until the matter was resolved. Additionally, Defendant claims that his

trial counsel could have questioned Mr. Jones as to his educational background,

training, and experience, as well as questioned Mr. Jones as to the procedure he

followed in performing the testing in this case. Finally, Defendant argues that his

trial counsel could have questioned Mr. Jones as to why he did not perform a

fingerprint analysis as requested by Deputy LaSalle.

Defendant also claims that his counsel‘s performance was deficient because

she failed to discredit Mr. Ardoin‘s testimony regarding the lack of fingerprint

testing in this case. Defendant alleges that Mr. Ardoin testified that the lab did not

perform fingerprint testing on the bag of marijuana submitted by Deputy LaSalle

because fingerprint testing was not requested. Defendant contends that his counsel

should have impeached Mr. Ardoin‘s testimony by introducing the lab report

showing that fingerprint testing was requested. This evidence, Defendant claims,

would have discredited Mr. Ardoin as an expert witness and affected the jury‘s

verdict.

This court has stated the following regarding the appropriateness of

reviewing an ineffective assistance of counsel claim on appeal:

The issue of ineffective counsel is more appropriately addressed
in an application for post-conviction relief, where an evidentiary
hearing can be conducted in the trial court. However, where an
ineffective assistance claim is raised on appeal, this court may address
the merits of the claim if the record discloses sufficient evidence to
rule on it. If this court considers a claim of ineffective counsel on
appeal, Defendant must satisfy a two-part test. He must first show
that counsel‘s performance was deficient and next, that the deficiency
prejudiced him.

State v. Teno, 12-357, p. 10 (La.App. 3 Cir. 11/7/12), 101 So.3d 1068, 1075

(citations omitted).

The record is not sufficient to determine whether Defendant‘s trial counsel

was ineffective for agreeing to the testimony of Mr. Ardoin in lieu of the testimony
21

of Mr. Jones without first consulting Defendant. Determination of this issue

requires testimony from defense counsel as to why she made such a decision.

Thus, this must be relegated to post-conviction relief where an evidentiary hearing

may be held on this issue.

As for Defendant‘s claim that his counsel was ineffective for failing to

impeach Mr. Ardoin regarding the lack of fingerprint testing, we find that this

claim has no merit. Defendant contends that when asked about fingerprint testing

by defense counsel, Mr. Ardoin testified that no fingerprint testing was performed

but that fingerprint testing would have been performed, if it had been requested.

Defendant avers that a competent counsel would have used the ―Request for

Scientific Analysis‖ submitted by Deputy LaSalle to show the jury that fingerprint

testing was, in fact, requested. The introduction of the analysis request, Defendant

claims, would have impeached Mr. Ardoin and discredited him as an expert

witness.

Defendant has failed to show that his counsel‘s introduction of the request

for analysis would have discredited Mr. Ardoin‘s testimony and affected the jury‘s

verdict. First, the jury heard Deputy LaSalle testify that he submitted the

marijuana for ―handprint‖ analysis. The ―Request for Scientific Analysis‖ was

admitted into evidence as State Exhibit Eight. The request reflects that chemical,

DNA and fingerprint testing was requested. Although not discussed at trial, it

appears from a review of State Exhibit Eight that the request for DNA and

fingerprint testing is crossed out. In the request for analysis attached to the

Defendant‘s pro se brief, however, the request for DNA and fingerprint testing is

not crossed out. Thus, it is questionable whether fingerprint testing was actually

requested in this case. Regardless, the jury was made aware of the fingerprint

22

testing issue through Deputy LaSalle‘s testimony and the introduction of State

Exhibit Eight.

Secondly, the introduction of the request for analysis during Mr. Ardoin‘s

testimony would not have discredited Mr. Ardoin‘s testimony. When questioned

by defense counsel regarding fingerprint testing, Mr. Ardoin testified that

fingerprint testing was not done in this case because it is not standard practice to

perform fingerprint testing in drug cases:

A: No. For drug cases we do not do fingerprinting.

....

Q: Has that been a standard of practice?

A: It‘s been a standard of practice simply because we, with the
volume of evidence with our aggravated crimes and violent crimes,
we chose to do those when it‘s necessary or requested. We get quite a
few drug cases, an enormous volume, so we don‘t do it on the drug
cases.

Q: Who would do fingerprinting then on the bag?

A: That would be the agency if they did fingerprinting.

Mr. Ardoin did not testify, as Defendant claims, that fingerprint testing was not

requested in this case. Thus, the introduction of the Request for Scientific Analysis

by defense counsel during Mr. Ardoin‘s testimony would not have impeached Mr.

Ardoin.

Accordingly, Defendant‘s ineffective assistance of counsel claim regarding

his counsel‘s agreement to allow Mr. Ardoin to testify in lieu of Mr. Jones is

relegated to post-conviction relief. However, Defendant‘s claim that his counsel

was ineffective for failing to impeach Mr. Ardoin with the ―Request for Scientific

Analysis‖ document has no merit.

23

DECREE

Defendant‘s conviction for a transaction involving drug proceeds is vacated

for insufficient evidence. Defendant‘s misdemeanor conviction for possession of

marijuana is vacated as we found it to be a violation of double jeopardy.

Defendant‘s conviction for possession of marijuana, second offense, however, is

affirmed. The single sentence of life imprisonment imposed by the trial court after

Defendant was adjudicated a fifth felony offender is vacated as indeterminate, and

the case is remanded for resentencing.

Finally, Defendant‘s claim that his counsel was ineffective for agreeing to

the testimony of Mr. Ardoin in lieu of Mr. Jones without first consulting with the

Defendant is relegated to post-conviction relief.

CONVICTIONS VACATED; CONVICTION AFFIRMED; SENTENCE
VACATED AND REMANDED WITH INSTRUCTIONS.

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

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