State of Louisiana v. Kennon Richard AKA Kennan Richard

COURT OF APPEAL, THIRD CIRCUIT

16-525

STATE OF LOUISIANA

VERSUS

KENNON RICHARD AKA KENNAN RICHARD

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2015-2058
HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Phyllis M. Keaty, Judges.

AFFIRMED.

Herbert Todd Nesom
District Attorney – 33rd Judicial District Court
Steven Sumbler
Assistant District Attorney – 33rd Judicial District Court
Joe Green
Assistant District Attorney – 33rd Judicial District Court
P. O. Box 839
Oberlin, LA 70655
Telephone: (337) 639-2641
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
Telephone: (337) 491-0570
COUNSEL FOR:
Defendant/Appellant - Kennon Richard a/k/a Kennan Richard

THIBODEAUX, Chief Judge.

Defendant Kennon Richard was a passenger in a vehicle driven by co-

defendant Christopher James. The vehicle was stopped for a traffic violation and

Mr. James was placed under arrest. While Mr. James was being placed in

handcuffs, he tossed a plastic bag of cocaine onto the car seat, whereupon Mr.

Richard grabbed the bag and attempted to hide it in the car. Kennon Richard was

found guilty by a jury of obstruction of justice pursuant to La.R.S. 14:130.1. Mr.

Richard timely appeals his conviction, his adjudication, and the trial court’s ruling

on his Batson challenges. For the following reasons, we affirm.

I.

ISSUES

We must determine:

1. whether the evidence presented at trial was
sufficient to find Kennon Richard guilty of
obstruction of justice;

2. whether the trial court erred in denying defense
counsel’s Batson challenges;

3. whether the trial court erred in finding Kennon
Richard to be a third felony offender; and

4. whether the trial court erred in denying Kennon
Richard’s Motion in Arrest of Judgment.

II.

FACTS AND PROCEDURAL HISTORY

Kennon Richard was a passenger in a vehicle driven by Christopher

James when it was stopped for a traffic violation. While being placed in

handcuffs, Mr. James removed several items from his pocket, including a clear

plastic bag of cocaine, which he threw onto the driver’s seat. The arresting officer

then observed Mr. Richard take the bag of cocaine and stuff it between the

passenger seat and the center console. The bag remained in plain view at all times.

Mr. Richard was also placed under arrest.

Mr. Richard was charged with possession of cocaine with the intent to

distribute in violation of La.R.S. 40:967(A)(1), and obstruction of justice in

violation of La.R.S. 14:130.1. A jury unanimously found Mr. Richard not guilty of

possession of cocaine with the intent to distribute, but guilty of obstruction of

justice. Mr. Richard was charged as a habitual offender, and the trial court

sentenced him to thirteen years and two months at hard labor, to run concurrent to

any other sentence.

III.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed

by the court for errors patent on the face of the record. After reviewing the record,

we find that there is one error patent.

Mr. Richard was incorrectly advised at sentencing that he had two

years from that date to file an application for post-conviction relief. Louisiana

Code of Criminal Procedure Article 930.8(A) provides that a defendant has two

years after conviction and sentence become final to seek post-conviction relief.

Thus, we find that the trial court should be directed to inform Mr. Richard of the

provisions of Article 930.8 by sending appropriate written notice to him within ten

days of the rendition of this opinion and to file written proof that Mr. Richard

received the notice in the record of the proceedings. State v. Baylor, 08-141

2

(La.App. 3 Cir. 11/26/08), 998 So.2d 800, writ denied, 09-275 (La. 11/20/09), 25

So.3d 795.

IV.

LAW AND DISCUSSION

Obstruction of Justice

Mr. Richard contends that the evidence at trial was insufficient to find

him guilty of obstruction of justice. He argues that his conduct cannot permit the

inference that he had the specific intent to distort the results of any criminal

proceeding as he made no attempt to conceal the bag of suspected cocaine.

Louisiana appellate courts are controlled by the Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781 (1979), standard when reviewing the sufficiency of

evidence to support a conviction. State v. Captville, 448 So.2d 676 (La.1984).

The Jackson standard of review is now legislatively embodied in La.Code Crim.P.

art. 821. This court discussed the claim of insufficient evidence in State v.

Lambert, 97-64 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27 (citations

omitted):

When the issue of sufficiency of evidence is raised
on appeal, the critical inquiry of the reviewing court is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
proven beyond a reasonable doubt. It is the role of the
fact finder to weigh the respective credibility of the
witness. Therefore, the appellate court should not
second-guess the credibility determination of the trier of
fact beyond the sufficiency evaluations under the Jackson
standard of review.

The appellate court’s function is not to assess the credibility of witnesses or to

reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

3

Obstruction of justice occurs when the offender tampers “with

evidence with the specific intent of distorting the results of any criminal

investigation or proceeding which may reasonably prove relevant to a criminal

investigation or proceeding.” La.R.S. 14:130.1(A)(1). Tampering includes “the

intentional alteration, movement, removal, or addition of any object or substance”

at the location of an incident subject to investigation. Id. Because obstruction of

justice is a specific intent crime, it does not need to be proven by fact, “but can be

inferred from the circumstances and the actions of the defendant.” State v.

Vercher, 14-1211, p. 11 (La.App. 3 Cir. 5/6/15), 162 So.3d 740, 747, writ denied,

15-1124 (La. 5/20/16), 191 So.3d 1065.

In State v. Blanche, 47,015 (La.App. 2 Cir. 4/11/12), 91 So.3d 1189,

an officer stopped a vehicle for a traffic violation. He observed a type of cigarette

he knew to be commonly used with the substance PCP on the defendant’s lap in

the back seat of the car. The officer saw the defendant grab the cigarette and throw

it onto the front seat as the defendant exited the vehicle. At trial, the defendant

testified that he first noticed the cigarette on his lap as the officer approached the

vehicle. He brushed it out of his lap, and it landed on the front passenger seat. The

jury found the defendant not guilty of possession of a controlled dangerous

substance, but guilty of obstruction of justice.

Officer Johnson testified that, during the arrest, Christopher James

grabbed a handful of contents out of his pocket, reached into the window of the

car, and dropped the contents on the seat. The contents of his pocket included a

clear bag of cocaine, lighters, keys, a pack of cigarettes, and money. Officer

Johnson testified that Mr. Richard reached over and snatched the clear plastic bag

4

of cocaine and then attempted to stuff the bag between the console and the

passenger seat.

Viewing the evidence in the light most favorable to the prosecution,

pursuant to the Jackson standard, it is clear that a jury could reasonably conclude

sufficient evidence was presented to support Mr. Richard’s conviction for

obstruction of justice. Mr. Richard chose the bag of cocaine from all the items that

Mr. James threw on the car seat. In fact, it was the only item that Mr. Richard

attempted to hide. The jury could reasonably infer that Mr. Richard was trying to

hide the drugs and evade criminal charges when he pushed the bag of cocaine

between the console and the seat. The undisputed evidence at trial reasonably

showed that Mr. Richard had the specific intent to distort the result of the

investigation or proceeding and thereby was sufficient to convict him of

obstruction of justice.

Batson Challenges

Mr. Richard contends that the trial court erred in denying his

challenges based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986).

Specifically, Mr. Richard argues that no race-neutral reasons existed for Ammie

Cole, Equilla Sapp, and Zealon Solomon, all African-Americans, to be excluded

from serving on the jury. The State excluded nine African-Americans altogether,

five by peremptory challenges, resulting in Mr. Richard being tried by an all-white

jury.

In Batson, the United States Supreme Court held that the use of

peremptory challenges to exclude persons from a jury based on their race violates

the Equal Protection Clause. Batson, 476 U.S. 79, 106 S.Ct. 1712. The holding in

5

Batson was adopted by the Louisiana Supreme Court in State v. Collier, 553 So.2d

815 (La.1989), and has been codified in Louisiana law under La.Code Crim.P. art.

795.

When a Batson challenge is asserted, the proponent bears the burden

of presenting a prima facie showing of purposeful discrimination in the selection

of the jury. State v. Nelson, 10-1724, 10-1726 (La. 3/13/12), 85 So.3d 21. The

burden then shifts to the opponent to show a non-discriminatory basis for its

peremptory challenge. Id. The trial court then determines whether the proponent

has carried his burden of proving purposeful discrimination. Id. In State v. Tilley,

99-569, pp. 4-5 (La. 7/6/00), 767 So.2d 6, 12-13, cert. denied, 532 U.S 959, 121

S.Ct. 1488 (2001), the supreme court set out criteria for evaluating the State’s

answer to whether the peremptory challenge was race-neutral:

Although the state’s explanation must be based on more
than an assumption or a hunch, State v. Collier, supra, to
be facially valid, it need not be persuasive, or even
plausible; thus unless a discriminatory intent is inherent
in the prosecutor’s explanation, the reason offered will be
deemed race-neutral. State v. Hobley, [98-2460 (La.
12/15/99), 752 So.2d 771]; Purkett [v. Elem,] 514 U.S.
[765] at 767, 115 S.Ct. [1769] at 1771 [(1995)].

Faced with a race-neutral explanation, the
defendant then must prove to the trial court purposeful
discrimination. Id. (Citing Batson, supra; Hernandez v.
New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d
395 (1991)). The proper inquiry in the final stage of the
Batson analysis is whether the defendant’s proof, when
weighed against the prosecutor’s proffered race-neutral
reasons, is sufficient to persuade the trial court that such
discriminatory intent is present. Id. (Citing State v.
Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 290). . . .
Because the factual determination pertaining to
intentional discrimination rests largely on credibility
evaluations, the trial court’s findings are entitled to great
deference by the reviewing court. Id.; State v. Snyder,
98-1078 (La. 4/14/99), 750 So.2d 832.

6

Potential Juror Ammie Cole

Ammie Cole initially asked to be excused because she “was taught not

to judge anyone.” However, the trial court did not excuse her at that time. She

further indicated that she had worked with Mr. Richard’s attorney as a teacher.

The State exercised a backstrike to Ms. Cole based on her history of actually

working with Mr. Richard’s attorney. Mr. James’s counsel adamantly objected to

her removal citing a Batson challenge, and Mr. Richard’s attorney joined in the

objection. The trial court excused Ms. Cole subject to the Batson challenge, and

Mr. Richard did not object to the trial court’s ruling. Failure to object to the trial

court’s ruling on a Batson challenge waives the issue on appeal. La.Code Crim.P.

art. 841. State v. Odenbaugh, 10-268 (La. 12/6/11), 82 So.3d 215, cert. denied, __

U.S. __ 133 S.Ct. 410 (2012). Accordingly, this court may not consider the trial

court’s determination regarding why the State challenged Ms. Cole.

Potential Juror Equilla Sapp

Ms. Sapp stated that she knew the Assistant District Attorney, Mr.

Sumbler, through church, was a cousin to his father, and best friends with his

mother. Ms. Sapp also knew Mr. Richard and his mother from their neighborhood.

The State exercised a challenge to exclude Ms. Sapp based on her being a family

friend. Mr. Richard’s counsel lodged no objection to the State’s challenge.

Accordingly, Mr. Richard waived any objection to the State’s peremptory

challenge of Ms. Sapp. Furthermore, the State had no discriminatory intent in

striking her. She was a close family friend of Mr. Richard and was also a member

of the A.D.A.’s family. This relationship was a sufficient race-neutral reason for

striking her from the jury.

7

Potential Juror Zealon Solomon

Mr. Solomon was an eighth grade math teacher, tennis coach, small

business owner, and a 2012 graduate of LSU Law School. He and the State’s

attorney, Mr. Sumbler, are cousins, and he went to school with Mr. Richard.

Additionally, Mr. Solomon’s students had midterm exams the week of trial.

Mr. Richard’s counsel raised a Batson challenge to the State’s

peremptory exclusion of Mr. Solomon. As race-neutral reasons, the State argued

that Mr. Solomon and the State’s attorney, Mr. Sumbler, were related, and Mr.

Solomon’s focus was on his students’ exams. The trial court denied the challenge

for cause but allowed the peremptory strike. Mr. Richard’s counsel objected to

that ruling.

The familial relationship between Mr. Solomon and Mr. Sumbler was

a sufficient race-neutral reason to strike him from the jury. The striking of family

members and close relationships undermines the appearance of stacking the jury in

favor of the State, a factor that supports denying the Batson challenge. For that

reason, the trial court correctly found that the State provided sufficient race-neutral

reasons to exclude Mr. Solomon and did not indicate any discriminatory intent.

That determination, based on the trial court’s credibility evaluations pertaining to

intentional discrimination, will not be disturbed.

Habitual Offender

Mr. Richard argues that the trial court erred in finding him to be a

third felony offender. He contends that the record does not show that he was

advised of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709

8

(1969), when he entered his plea of no contest to simple burglary, one of the

predicate offenses.

If the defendant denies the allegations of the bill of
information, the burden is on the State to prove the
existence of the prior guilty pleas and that defendant was
represented by counsel when they were taken. If the
State meets this burden, the defendant has the burden to
produce some affirmative evidence showing an
infringement of his rights or a procedural irregularity in
the taking of the plea. If the defendant is able to do this,
then the burden of proving the constitutionality of the
plea shifts to the State. The State will meet its burden of
proof if it introduces a “perfect” transcript of the taking
of the guilty plea, one which reflects a colloquy between
judge and defendant wherein the defendant was informed
of and specifically waived his right to trial by jury, his
privilege against self incrimination, and his right to
confront his accusers. If the State introduces anything
less than a “perfect” transcript, for example, a guilty plea
form, a minute entry, an “imperfect” transcript, or any
combination thereof, the judge then must weigh the
evidence submitted by the defendant and by the State to
determine whether the State has met its burden of
proving that defendant’s prior guilty plea was informed
and voluntary, and made with an articulated waiver of the
three Boykin rights.

State v. Shelton, 621 So.2d 769, 779-80 (La.1993) (footnotes omitted).

An absence of a Boykin notation in the minutes is not sufficient to

shift the burden of proving the constitutionality of the plea to the State. State v.

Coleman, 99-1925 (La.App. 3 Cir. 6/21/00), 762 So.2d 1134. In Coleman, the

State introduced a minute entry from the predicate plea showing that the defendant

had been represented by counsel at the plea hearing. “Thus, the burden shifted to

the Defendant to show an infringement of his rights or procedural irregularity at

the taking of the plea.” Id. at 1136. The defendant argued that the minute entry

failed to show whether he was advised of his Boykin rights. This court found that

the defendant’s claim lacked merit. The defendant merely relied on the absence of

9

a Boykin notation in the minute entry, and that “was insufficient to shift the burden

back to the State to produce a ‘perfect’ transcript of the guilty plea.” Id. at 1137.

Mr. Richard’s case presents a similar situation to that in Coleman. At

Mr. Richard’s habitual offender hearing, the State provided documentation of Mr.

Richard’s prior conviction for possession of cocaine with intent to distribute. The

plea form included Mr. Richard’s waiver of his Boykin rights. The State also

offered certified copies of court minutes and the bill of information where Mr.

Richard pled no contest to simple burglary in October 2009. The trial judge asked

for the Boykin form. The State told the court that the form was not attached to the

minutes and bill of information, but it had the actual minutes. Mr. Richard’s

attorney objected to the simple burglary conviction being used to establish a

predicate offense because there was no Boykin form and no transcription of the

colloquy between Mr. Richard and the sentencing judge.

The trial judge found Mr. Richard to be a third felony offender. When

analyzing the court minutes regarding the simple burglary conviction, the trial

judge noted that the minutes reflected that Mr. Richard had knowingly, freely, and

voluntarily entered his plea. The trial judge observed that Mr. Richard was advised

of his rights at sentencing, which typically includes Boykin rights. Accordingly,

the trial court found that both prior convictions were satisfactorily presented and

proved to the Court.

We find that the State met its initial burden of proving the existence of

the prior conviction and Mr. Richard’s representation by counsel at the plea. The

burden then shifted to Mr. Richard to produce affirmative evidence of an

infringement of his rights or of a procedural irregularity. The absence of a

recitation of Mr. Richard’s Boykin rights in the minutes is not such evidence.

10

Coleman, 762 So.2d 1134. Thus, the burden did not shift back to the State to

prove the constitutionality of the plea. This argument lacks merit.

Motion in Arrest of Judgment

Mr. Richard argues that the trial court erred when it denied his Motion

in Arrest of Judgment. He contends that the verdict form should have included

additional responsive verdicts for obstruction of justice. Louisiana Code of

Criminal Procedure Article 803 provides that the trial court shall charge the jury as

to the law applicable to the charged offense and to any other offenses of which the

accused could be found guilty under the provisions of La.Code Crim.P. arts. 814 or

815. “An irregularity or error cannot be availed of after verdict unless it was

objected to at the time of occurrence.” La.Code Crim.P. art. 841. Mr. Richard

failed to preserve this issue for appeal.

The trial court reviewed the jury charge with all counsel. The trial

judge removed a reference to conviction of a prior offense and to discrediting

testimony because of a prior inconsistent statement. Mr. Richard made no

objection regarding the responsive verdicts, and the verdict sheet went to the jury

without the choices Mr. Richard now raises on appeal. Mr. Richard did not object

when the jury was charged or when the verdict form was submitted to the jury and

thus, did not properly preserve the issue for review on appeal.

V.

CONCLUSION

Accordingly, we affirm Mr. Richard’s conviction, the State’s Batson

challenges, Mr. Richard’s status as a third felony offender, and the denial of his

Motion in Arrest of Judgment. We also direct the trial court to inform Mr.

11

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

written notice to Mr. Richard within ten days of the rendition of this opinion and to

file written proof into the record indicating that Mr. Richard received the notice.

AFFIRMED.

12