Opinion
2014 KA 0137
09-19-2014
STATE OF LOUISIANA v. TORONZO THOMPKINS
Camille A. Morvant, II Annette M. Fontana Joseph S. Soignet Thibodaux, LA Counsel for Appellee, State of Louisiana Gwendolyn K. Brown Baton Rouge, LA Counsel for Defendant/Appellant, Toronzo Thompkins
NOT DESIGNATED FOR PUBLICATION Appealed from the Seventeenth Judicial District Court
In and for the Parish of Lafourche, State of Louisiana
Trial Court Number 499710
Honorable John E. LeBlanc, Judge Presiding
Camille A. Morvant, II
Annette M. Fontana
Joseph S. Soignet
Thibodaux, LA
Counsel for Appellee,
State of Louisiana
Gwendolyn K. Brown
Baton Rouge, LA
Counsel for Defendant/Appellant,
Toronzo Thompkins
BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
WHIPPLE, C.J.
Defendant, Toronzo Thompkins, was charged by bill of information with distribution of a schedule II controlled dangerous substance (cocaine), a violation of LSA-R.S. 40:967(A)(1). He pled not guilty. Following a jury trial, defendant was found guilty as charged. The trial court denied defendant's motions for new trial and postverdict judgment of acquittal, and thereafter sentenced defendant to thirty years at hard labor, with the first two years imposed without the benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging five assignments of error. For the following reasons, we affirm defendant's conviction, but we vacate defendant's sentence and remand for resentencing.
FACTS
On March 24, 2011, an undercover narcotics team with the Lafourche Parish Sheriff's Office utilized a confidential informant to conduct a controlled drug buy from defendant. The confidential informant, Nikki Chiasson Landry, had recently been arrested and, in an effort to seek leniency, offered to take part in the transaction. Landry informed the undercover narcotics team that she could purchase seven grams of crack cocaine from defendant for $250.00.
Members of the undercover narcotics team provided Landry with cash for the purchase and outfitted her with two recording devices - one device which recorded both audio and video, and another, a "KEL" device which recorded only audio. Defendant later met Landry at her home. Following brief negotiations, defendant sold Landry approximately 6.4 grams (gross) of cocaine for $210.00. Subsequent analysis of the cocaine revealed that its net weight was approximately 4.66 grams.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, defendant argues that the trial court erred in admitting into evidence the videotape of the transaction between him and Landry. He contends that this videotaped evidence was hearsay and that it violated the Confrontation Clause of the Sixth Amendment.
At trial, the primary evidence of defendant's guilt was the video recording of the transaction between defendant and Landry. Landry was unable to be called as a witness because she died shortly before trial. The video is a continuous, point-of-view shot from Landry's chest area. It shows Landry driving to her home, followed by defendant arriving there and apparently engaging in a negotiation with Landry for the sale price of the cocaine. Defendant is visible in the video. The video then shows Landry leaving her home to again meet with the undercover narcotics team. Notably, the video and accompanying audio do not contain any specific mention of the words "cocaine" or "crack cocaine." However, the video does include evidence of a price renegotiation based upon defendant's failure to provide the full seven grams that Landry sought to buy.
Defendant first argues that the video should not have been admissible because it constituted hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801(C). "Things said or done" are not hearsay. See LSA-C.E. art. 801(D)(4). To qualify as a thing said or done, statements must be events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. See LSA-C.E. art. 801(D)(4).
In the instant case, the video recording of the transaction between Landry and defendant clearly constitutes a recording of things said or done. The video shows an informal drug purchase by Landry from the defendant. The negotiations that are depicted in the video followed from the fact that defendant had a lesser quantity of drugs than Landry expected, and Landry did not narrate the depicted actions in any significant way. The entirety of the conversation between Landry and defendant pertained to the completion of the drug transaction. Therefore, the statements contained in the video constituted things said or done, making them not hearsay under LSA-C.E. art. 801(D)(4). See State v. Lindsey, 2005-0465 (La. App. 1st Cir. 6/8/07), 964 So. 2d 1032, 1034.
Defendant also contends that the contents of this video were inadmissible because they violated the Confrontation Clause of the Sixth Amendment. The Confrontation Clause of the Sixth Amendment provides: "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004), the Supreme Court held that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and the defendant had the prior opportunity to cross-examine the witnesses, regardless of whether such statements are deemed reliable by the court. However, this court has previously found that surreptitiously monitored conversations and statements are not "testimonial" for purposes of Crawford. See State v. Tsolainos, 2007-2443 (La. App. 1st Cir. 10/10/08), 997 So. 2d 46, 49 (per curiam), writ denied, 2008-2653 (La. 10/9/09), 19 So. 3d 6. Therefore, defendant's argument under the Confrontation Clause also fails.
This assignment of error is without merit.
ASSIGNMENTS OF ERROR NOS. 2 AND 3
In these related assignments of error, the defendant argues, respectively, that the Louisiana Constitution provision for non-unanimous jury verdicts violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and the eleven-to-one, non-unanimous jury verdict in this case violates his "right to a jury" under the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, the defendant contends that the enactment of Louisiana Constitution article I, § 17(A) was motivated by an express and overt desire to discriminate and has had a racially discriminatory impact since its adoption.
It is well-settled that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below. A party must raise the unconstitutionality in the trial court, the unconstitutionality must be specially pleaded, and the grounds outlining the basis of unconstitutionality must be particularized. See State v. Hatton, 2007-2377 (La. 7/1/08), 985 So. 2d 709, 718-719. In the instant case, the defendant failed to raise his challenge to Louisiana Constitution Article I, § 17(A) in the trial court. Accordingly, the issue is not properly before this court.
Nevertheless, we address this oft-repeated issue to press this court's position that this argument regarding non-unanimous verdicts is untenable. Whoever commits the crime of distribution of cocaine shall be imprisoned at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence to be imposed without benefit of parole, probation, or suspension of sentence. See LSA-R.S. 40:967(B)(4)(b). Louisiana Constitution article I, § 17(A) and Louisiana Code of Criminal Procedure article 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 413-414, 92 S. Ct. 1628, 1534, 32 L. Ed. 2d 184 (1972); State v. Belgard, 410 So. 2d 720, 726 (La. 1982); State v. Shanks, 97-1885 (La. App. 1st Cir. 6/29/98), 715 So. 2d 157, 164-165.
The individual may also be fined up to fifty thousand dollars. See LSA-R.S. 40:967(B)(4)(b).
Oregon's non-unanimous jury verdict provision of its state constitution was challenged in Apodaca. Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972), decided with Apodaca, upheld Louisiana's then-existing constitutional and statutory provisions allowing nine-to-three jury verdicts.
Defendant suggests that since subsequent legal developments call Apodaca into serious question, this court should find Louisiana Constitution article I, § 17(A) (and by extension, LSA-C.Cr.P. art. 782, which is essentially the codification of the constitutional provision) unconstitutional. In support of this assertion, defendant cites the decision of McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010). Defendant's reliance on this jurisprudence is misplaced. The McDonald Court, while holding that the Second Amendment right to keep and bear arms is fully applicable to the States through the Fourteenth Amendment, did nothing to alter the well-established jurisprudence holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials. See McDonald, 130 S. Ct. at 3035 n.14. The McDonald Court specifically stated that, although the Sixth Amendment requires unanimous jury verdicts in federal criminal trials, it does not require unanimous jury verdicts in state criminal trials. See McDonald, 130 S. Ct. at 3035 n.14; and State v. Bishop, 2010-1840 (La. App. 1st Cir. 6/10/11), 68 So. 3d 1197, 1205, writ denied, 2011-1530 (La. 12/16/11), 76 So. 3d 1203. Defendant's argument has been repeatedly rejected by this court. See State v. Smith, 2006-0820 (La. App. 1st Cir. 12/28/06), 952 So. 2d 1, 15-16, writ denied, 2007-0211 (La. 9/28/07), 964 So. 2d 352; and State v. Caples, 2005-2517 (La. App. 1st Cir. 6/9/06), 938 So. 2d 147, 156-157, writ denied, 2006-2466 (La. 4/27/07), 955 So. 2d 684.
Defendant also asserts in his brief that Louisiana's non-unanimous jury verdict scheme violates equal protection because racial discrimination was a substantial factor behind the enactment of the constitutional provision. Louisiana adopted its nonunanimity rule in its 1898 constitutional convention, a convention designed, according to the defendant, "to produce a constitution that would entrench white power once and for all." Our supreme court, in State v. Bertrand, 2008-2215 (La. 3/17/09), 6 So. 3d 738, addressed this issue over four years ago: "Finally, defendants argue that the use of non-unanimous verdicts have an insidious racial component, allow minority viewpoints to be ignored, and is likely to chill participation by the precise groups whose exclusion the Constitution has proscribed." Bertrand, 6 So. 3d at 742. The Bertrand Court found that a non-unanimous twelve-person jury verdict is constitutional and that LSA-C.Cr.P. art. 782 does not violate the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. Regarding the equal protection argument that such verdicts have an insidious racial component, the Bertrand Court noted that the issue had already been decided as meritless by a majority of the United States Supreme Court in Apodaca. Bertrand, 6 So. 3d at 743.
In Bertrand, the supreme court only considered Article 782, while defendant attacks Article I, § 17(A) itself. We find this approach to be a distinction without a difference, because Article 782 closely tracks the language of Article I, § 17(A).
Thus, while Apodaca was a plurality rather than a majority decision, the United States Supreme Court, as well as other courts, has cited or discussed the opinion various times since its issuance and, on each of these occasions, it is apparent that its holding as to non-unanimous jury verdicts represents well-settled law. Bertrand, 6 So. 3d at 742. Thus, Louisiana Constitution article I, § 17(A) and LSA-C.Cr.P. art. 782(A) are not unconstitutional and, therefore, not in violation of the defendant's constitutional rights. See State v. Hammond, 2012-1559 (La. App. 1st Cir. 3/25/13), 115 So. 3d 513, 514-515, writ denied, 2013-0887 (La. 11/8/13), 125 So. 3d 442, cert. denied, ___ U.S. ___, 134 S. Ct. 1939, 188 L. Ed. 2d 965 (2014).
These assignments of error are without merit.
ASSIGNMENTS OF ERROR NOS. 4 AND 5
In his fourth assignment of error, defendant argues that his sentence is unconstitutionally excessive. In his fifth assignment of error, defendant contends that the trial court erred in sentencing him without waiting twenty-four hours subsequent to the denial of his motion for new trial.
Following his trial, defendant filed motions for postverdict judgment of acquittal and new trial. The trial court denied both of these motions on October 16, 2013, and it sentenced defendant on the same day. The record does not reflect any waiver by defendant of the required twenty-four hour delay attendant to these motions. See LSA-C.Cr.P. art. 873. Further, defendant challenges his sentence on appeal. Accordingly, we must vacate defendant's sentence and remand the case to the trial court for resentencing. See State v. Augustine, 555 So. 2d 1331, 1333-35 (La. 1990). We note the state's argument that this issue might be moot because of the possibility that defendant will be adjudicated to be, and sentenced as, a habitual offender. However, nothing in the record supports that argument of mootness at this time.
Having found merit to defendant's fifth assignment of error, we pretermit consideration of defendant's fourth assignment of error, which raised the issue of excessive sentence.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.