Opinion
2013 KA 0683
12-27-2013
STATE OF LOUISIANA v. PANAGIOTIS I. KONDYLIS
Walter P. Reed Covington, LA Counsel for Appellee, State of Louisiana Kathryn W. Landry Baton Rouge, LA Timothy Yazbeck New Orleans, LA Counsel for Defendant/Appellant, Panagiotis I. Kondylis
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany, State of Louisiana
Trial Court Number 488307
Honorable Richard A. Swartz, Judge Presiding
Walter P. Reed
Covington, LA
Counsel for Appellee,
State of Louisiana
Kathryn W. Landry
Baton Rouge, LA
Timothy Yazbeck
New Orleans, LA
Counsel for Defendant/Appellant,
Panagiotis I. Kondylis
BEFORE: WHIPPLE, C.J., WELCH AND CRAIN, JJ.
Welch, J.
The defendant, Panagiotis I. Kondylis, was charged by felony bill of information with distribution of a schedule II controlled dangerous substance (cocaine), a violation of Louisiana Revised Statutes section 40:967A(1). He pled not guilty and, following a jury trial, was found guilty as charged. He filed a motion for postverdict judgment of acquittal, which was denied. The State subsequently filed a multiple offender bill of information. At the multiple offender hearing, the defendant admitted to the allegations of the bill, and the district court adjudicated him a sixth-felony habitual offender. He was sentenced to thirty-five years at hard labor without the benefit of probation or suspension of sentence. The defendant now appeals. For the following reasons, we affirm his conviction and habitual offender adjudication, amend his sentence, and affirm the sentence as amended.
The original transcript indicated that the defendant was convicted by a nine-to-three vote of the jury. The State filed a motion to supplement the record with an audio recording of the polling of the jury to confirm the defendant was convicted by a ten-to-two vote. This court ordered the district court to conduct a hearing and amend the transcript if the audio recording confirmed an error in the transcript. The district court held the hearing on September 19, 2013, and amended the transcript to reflect the correct number of juror votes, which was ten-to-two.
The defendant's predicate offenses were set forth as: (1) November 8, 2006, convictions for public bribery and malfeasance in office under 22nd Judicial District Court (22nd JDC) docket number 368,638; (2) November 8, 2006, convictions for possession of trenbolone, possession of nandrolone, and possession of diazepam under 22nd JDC docket number 375,454; (3) November 8, 2006, conviction for racketeering under 22nd JDC docket number 407,784; (4) November 6, 2006, convictions for extortion and public intimidation under 22nd JDC docket number 407,786; and (5) November 8, 2006, conviction for theft under 22nd JDC docket number 375,452.
FACTS
On June 16, 2009, officers with the St. Tammany Parish Sheriff's Office conducted a narcotics investigation wherein a confidential informant and an undercover agent met with the defendant in the Murphy Oil parking lot at Walmart on Natchez Drive in Slidell, Louisiana. The undercover agent approached the defendant's truck and talked with the defendant. At the defendant's direction, the undercover agent took cocaine out of the cup holder inside of the defendant's truck and left $150.00 inside of the cup holder. The agent wore an audio recording device during the transaction, and a recording of the transaction was played for the jury at trial.
OTHER CRIMES EVIDENCE
In related assignments of error, the defendant argues that the district court erred in allowing the State to cross-examine him relative to an arrest that occurred after the instant offense and to present the testimony of Sergeant Steven Gaudet as rebuttal evidence to his entrapment defense. He claims that his motion for mistrial should have been granted because of the admission of other crimes evidence.
Louisiana Code of Criminal Procedure article 770(2) provides that a mistrial shall be granted, upon motion of the defendant, when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. For purposes of Article 770, a law enforcement officer is not considered a "court official." State v. Pooler, 96-1794 (La. App. 1st Cir. 5/9/97), 696 So.2d 22, 48, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288; State v. Brown, 95-0755 (La. App. 1st Cir. 6/28/96), 677 So.2d 1057, 1068.
However, since the defendant is objecting to testimony given by a State witness, rather than to remarks or comments made by a judge, district attorney, or court official, the provisions of La. C.Cr.P. arts. 771 and 775 are applicable. See Pooler, 696 So.2d at 44, 48. Louisiana Code of Criminal Procedure article 771(2) sets forth permissive grounds for requesting admonition or a mistrial when a prejudicial remark is made by a witness or person other than a judge, district attorney, or court official.
Mistrial is a drastic remedy that should only be declared upon a clear showing of prejudice by the defendant; a mere possibility of prejudice is not sufficient State v. Ducre, 2001-2778 (La. 9/13/02), 827 So.2d 1120, 1120 (per curiam). A mistrial under the provisions of La. C.Cr.P. art. 771 is at the discretion of the district court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Johnson, 2006-1235 (La. App. 1st Cir. 12/28/06), 951 So.2d 294, 300. A district court's ruling denying a mistrial will not be disturbed absent an abuse of discretion. Id.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. Hills, 99-1750 (La. 5/16/00), 761 So.2d 516, 520. However, when the evidence offered has independent relevance, the general rule of exclusion is inapplicable, and the test of admissibility is then one of weighing the probative value against the prejudicial effect. State v. Silguero, 608 So.2d 627, 629 (La. 1992). Even where the other crimes evidence does not have independent relevance, it may still be admissible if the defendant chooses to pursue the defense of entrapment. Other crimes evidence utilized by the State must be of a similar character of the offense for which the defendant is on trial, must not be remote in time from the offense charged, and the prejudicial effect must not outweigh the probative value on the issue of the defendant's predisposition. State v. Batiste, 363 So.2d 639, 643 (La. 1978); State v. Guarisco, 466 So.2d 1356, 1361 (La. App. 3rd Cir.), writ denied, 474 So.2d 946 (La. 1985).
The defendant testified at trial. On direct examination, he stated that he never wanted to go into the drug business, had never been a drug dealer, never sold cocaine before the instant offense, and had not sold drugs since the instant offense. The defendant explained that he met a man named Jimmy through his friend, Rex. Jimmy, who owned a vehicle repossession business, was going to help the defendant start a used car business. The defendant wanted to impress Jimmy, so when Jimmy asked him to purchase some cocaine, the defendant did not want to turn him down. The defendant testified that he got the cocaine from a friend for $150.00 and sold it for the same price during the meeting arranged by Jimmy, who served as the confidential informant. The defendant stated that although Jimmy tried to arrange another transaction, he did not sell cocaine to him a second time because he felt very "uneasy" that Jimmy brought someone else with him during the first transaction. He wanted to impress Jimmy, but no one else.
On cross-examination, the State asked the defendant, "Mr. Kondylis, you just answered a question of your attorney that you have never wanted to go into the drug business, correct?" The defendant responded, "Correct." The defendant then testified that he had been charged with possession of cocaine along with several other drug offenses approximately nine months after the instant offense.
After the defense rested, it pointed out to the district court that the State planned to call an officer on rebuttal and moved for a mistrial, arguing that the defendant could not be impeached on an open charge. In denying the motion, the district court stated, "[Y]our client got on the witness stand and testified that he had not distributed cocaine before or after this event. If the State has evidence that he has done so, I'm going to allow him to present it." The court instructed the State to limit the testimony of the witness to facts contradicting the defendant's statement denying that he distributed cocaine.
The State then called Sergeant Steven Gaudet with the St. Tammany Parish Sheriff's Office as its rebuttal witness. Sergeant Gaudet testified that while conducting surveillance on March 11, 2010, he observed the defendant come out of an apartment and enter into another apartment while carrying a small-to-medium-size bag. After the defendant left the second apartment, which was vacant, Sergeant Gaudet entered it and located the bag inside of a cabinet. The bag contained various narcotics, specifically cocaine. It also contained two pieces of mail addressed to the defendant. There were approximately seven individually packaged plastic bags of cocaine with a total weight of roughly twenty-four grams. Based on his experience, Sergeant Gaudet testified that the packaging of the cocaine was consistent with distribution.
Because the defendant raised the entrapment defense, the State could properly present other crimes evidence to show the defendant's predisposition to commit the instant offense. La. Code Evid. art. 405(B); Batiste, 363 So.2d at 643. Contrary to the defendant's assertion that only prior acts are admissible, there is no prohibition against admission of subsequent acts. See La. C.E. art. 404(B); State v. Friday, 2010-2309 (La. App. 1st Cir. 6/17/11), 73 So.3d 913, 927, writ denied, 2011-1456 (La. 4/20/12), 85 So.3d 1258; State v. Bennett, 457 So.2d 741, 743-44 (La. App. 2nd Cir. 1984). The testimony of Sergeant Gaudet and the defendant was pertinent to whether the sale in question was caused by the defendant's own predisposition towards drug dealings or by inducements from Jimmy. The probative value of such evidence sufficiently outweighed its prejudicial effect. Therefore, the other crimes evidence was properly admitted in this case, and the district court did not abuse its discretion in denying the defendant's motion for mistrial.
Also, the defendant opened the door for the State to ask questions about his arrest. Contrary to his argument that his general credibility was being improperly impeached by the use of an arrest rather than a conviction, in violation of La.C.E. art. 609.1, we find that his credibility was being properly impeached through contradiction. The defendant testified that he "never" sold drugs or wanted to go into the drug business. Sergeant Gaudet testified about the defendant's subsequent cocaine possession on March 11, 2010, which directly contradicted the defendant's testimony and was relevant and admissible. Accordingly, these assignments of error have no merit.
SENTENCING ERROR
Under La. C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. After a careful review of the record, we have found a sentencing error.
After adjudicating the defendant to be a sixth-felony habitual offender, the district court sentenced him to thirty-five years at hard labor without the benefit of probation or suspension of sentence. Pursuant to the habitual offender law, if the fourth and two of the prior felonies are defined as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or of any other crime punishable by imprisonment for twelve years or more, the person shall be imprisoned for the remainder of his natural life without the benefit of parole, probation, or suspension of sentence. La. R.S. 15:529.1 A(1)(c)(ii) (prior to 2010 amendments). The defendant's instant offense, distribution of a schedule II controlled dangerous substance (cocaine), is a violation of the Uniform Controlled Dangerous Substances Law punishable for ten years or more. See La. R.S. 40:967(B)(4)(b). Two of the defendant's prior felonies, extortion and racketeering, are crimes punishable by imprisonment for twelve years or more. See La. R.S. 14:66; La. R.S. 15:1354(A). Thus, a sentence of life imprisonment was mandatory in this case, and the defendant's sentence is illegally lenient. An illegal sentence may be corrected at any time by an appellate court on review. La. C.Cr.P, art. 882A. The defendant has no constitutional or statutory right to an illegally lenient sentence. State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, 797. To conform with the legislatively mandated provisions of La. R.S. l5:529.1(A)(1)(c)(ii) (prior to 2010 amendments), we amend the sentence to imprisonment for the remainder of the defendant's natural life without benefit of parole, probation, or suspension of sentence.
AFFIRM CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED. SENTENCE AMENDED AND AFFIRMED AS AMENDED.
STATE OF LOUISIANA
VERSUS
PANAGIOTIS I. KONDYLIS
NUMBER 2013 KA 0683
Whipple, C.J., concurring in part and dissenting in part.
As the majority correctly notes, the defendant's instant offense, distribution of a schedule II controlled dangerous substance, is a violation of the Uniform Controlled Dangerous Substances Law punishable for ten years or more, LSA-R.S. 40:967(B)(4)(b), and two of the defendant's prior felonies, extortion and racketeering, are crimes punishable for twelve years or more. See LSA-R.S. 14:66; LSA-R.S. 15:1354A. Thus, the majority is correct in its conclusion that a sentence of life imprisonment was mandatory in this case, and the defendant's sentence is illegally lenient. However, because the sentence is not inherently prejudicial to the defendant, and neither the State nor the defendant raised this sentencing issue on appeal, I would decline to correct this error. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So. 2d 112, 123-125 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So. 2d 1277. Thus, I respectfully dissent in part and would affirm the conviction, sentence, and habitual offender adjudication as rendered by the trial court.