STATE v. BUTLER

Reset A A Font size: Print

Supreme Court of Louisiana.

STATE of Louisiana v. Joseph BUTLER.

No. 99-K-1794.

Decided: May 01, 2000

Martin Edward Regan, Jr. New Orleans, Counsel for Applicant. Joseph Butler, pro se, Applicant. Richard P. Ieyoub, Attorney General, Vincent Joseph Borne, Franklin, John Phillip Haney, St. Martinville, Thomas C. Senette, Walter James Senette, Jr., Franklin, Counsel for Respondent.

For the following reasons, we affirm relator's conviction and sentence for possession of cocaine with intent to distribute in violation of La.R.S. 40:967(A)(1).

 We agree with relator that the amount of cocaine recovered by the police from his person, a single rock weighing .07 grams, ordinarily would not support a jury's finding of an intent to distribute.  State v. Fisher, 628 So.2d 1136, 1142 (La.App. 1st Cir.1993) (possession of 20 rocks of cocaine not sufficient to support an inference of intent to distribute), writ denied, 637 So.2d 474;  State v. Porter, 547 So.2d 736 (La.App. 3rd Cir.1989) (possession of 0.6 grams of cocaine did not support inference of intent to distribute).   The police had seen relator discard another object during a brief struggle which accompanied his initial detention but had been unable to find it after subduing their suspect.   However, in his statements to the police after his arrest, relator admitted that two other rocks of cocaine had spilled out of his pocket during a struggle with the officers and that he made his living by selling drugs.   Relator denied that he intended to distribute the cocaine he had in his possession, describing it as “left over shit” that “you would probably give a geek,” an explanation consistent with the relatively small amount of cocaine involved in this case, even taking into account the two unrecovered rocks of cocaine.

  Nevertheless, the sequence of events leading to his arrest began with a tip by a “documented reliable informant” that relator would be leaving the area of the Morgan City Hotel on either 6th Street or Federal Avenue, on his bicycle and in possession of cocaine, and “would be attempting to make a delivery to the north end of town.”   Within minutes of the tip, the police stopped relator on his bicycle on 6th Street.   Counsel did not object to testimony regarding the informant's tip, despite its hearsay character, see State v. Banks, 439 So.2d 407, 409 (La.1983), and the testimony therefore became substantive evidence for jurors to consider “to the extent of its rational persuasive power.”   1 McCormick on Evidence, § 54, p. 242 (John W. Strong ed., 5th ed.1999);  see State v. Boutte, 384 So.2d 773, 776 (La.1980) (“Ordinarily, if hearsay evidence is admitted without objection, it becomes substantive evidence and may be used by the trier of fact to the extent of any probative or persuasive power that it has.”).   Jurors could reasonably find from the accuracy with which the known police informant predicted relator's immediate movements that “a person with access to ․ information [about an individual's itinerary] is likely to also have access to reliable information about that individual's illegal activities.”  Alabama v. White, 496 U.S. 325, 333, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990).   Rational jurors could therefore infer from hearsay evidence that if the informant were correct about the other details of his tip the informant was also correct that the cocaine relator would attempt to deliver was the unrecovered cocaine relator admitted he had had on his person and which he attempted to explain away as “left over.”   Under these circumstances, we conclude that the evidence was sufficient to support relator's conviction of possession of cocaine with intent to distribute.

AFFIRMED.

The amount of narcotics recovered from the defendant's person consisted of one single rock of cocaine, weighing .07 grams.   Possession of such a small amount clearly supports a finding of simple possession, rather than a finding of possession with intent to distribute.

Narcotics offenses involving possession with intent to distribute require proof of specific intent.  State v. Ramoin, 410 So.2d 1010 (La.1981);  State v. Elzie, 343 So.2d 712 (La.1977).   Intent to distribute may be inferred from the circumstances.  State v. Hearold, 603 So.2d 731 (La.1992).   For example, the amount and form of a controlled dangerous substance constitute evidence from which a jury may infer an intent to distribute the particular substance.  State v. Duncan, 420 So.2d 1105 (La.1982).   However, mere possession of a controlled dangerous substance is not evidence of intent to distribute that substance unless the quantity is so large that no other inference is reasonable.  State v. Greenway, 422 So.2d 1146 (La.1982).

It is well settled in the jurisprudence that the uncorroborated confession of an accused will not of itself sustain a conviction but that there must be other proof of the corpus delicti.  State v. Morgan, 1925, 157 La. 962, 103 So. 278, 40 A.L.R. 458;  Harris v. State, 1916, 72 Fla. 128, 72 So. 520;  State v. Jacobs, 1899, 21 R.I. 259, 43 A. 31;  Messel v. State, 1911, 176 Ind. 214, 95 N.E. 565;  In re Kelly, 1905, 28 Nev. 491, 83 P. 223;  Mangum v. United States, 1923, 9 Cir., 289 F. 213;  Wharton on Criminal Law, Vol. 1, p. 456.

The majority bases its conclusion that the defendant intended to distribute cocaine, in part, upon the defendant's statement to police that he had two other rocks of cocaine in his possession at the time of his encounter with the officers.   Amazingly, the “rocks” that the defendant referred to in his statement were never recovered, thus there is no proof, other than the defendant's statement, that  they ever existed.   In most criminal cases, defendants make self-serving statements to exculpate themselves, and we never accept those statements without some proof.   Why, then would we accept the attempt by this defendant to paint himself as a drug dealer without further proof?   Defendant was apprehended on a bicycle with one rock of crack cocaine.   The police officers did not find any other drugs in the defendant's possession.   Nor did they find any of the tools commonly associated with the distribution of drugs, such as drug paraphernalia, money, firearms, a pager, or a scale on the defendant's person.

For the foregoing reasons, I would vacate defendant's conviction for possession with intent to distribute, enter a conviction of simple possession, and remand the case to the trial court for resentencing.

FOOTNOTES

FOOTNOTE.  

 PER CURIAM.* FN* Calogero, C.J., not on panel, recused.   See La. S.Ct. Rule IV, Part II, § 3.

JOHNSON, J., dissents and assigns reasons.