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STATE OF LOUISIANA VERSUS LUCIEN P. BAZLEY

NO. 09-KA-358

COURT OF APPEAL

FlFTH CIRCUIT

FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 07-2459, DIVISION "A"
HONORABLE JOAN S. BENGE, JUDGE PRESIDING


JANUARY 11,2011


JUDE G. GRAVOIS

JUDGE


Panel composed of Judges Clarence E. McManus,
Jude G. Gravois, and Marc E. Johnson


PAUL D. CONNICK, JR. District Attorney TERRY M. BOUDREAUX JULIET CLARK Assistant District Attorneys
Parish of Jefferson
200 Derbigny Street
Gretna, LA 70053
COUNSEL FOR PLAINTIFF/APPELLEE
LUCIEN P. BAZLEY #358366 In Proper Person Catahoula Correctional Center 499 Old Columbia Road Harrisburg, LA 71340-3001 DEFENDANT/APPELLANT

JANE L. BEEBE Attorney at Law Louisiana Appellate Project P. O. Box 6351
New Orleans, LA 70174-6351
COUNSEL FOR DEFENDANT/APPELLANT


CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS

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The defendant, Lucien Bazley, has appealed his conviction and sentence for

possession of narcotics. For the reasons that follow, we affirm.

PROCEDURAL HISTORY
On April 20, 2007, the Jefferson Parish District Attorney filed a bill of information charging the defendant with Count 1, possession of marijuana (second offense), and Count 2, possession of cocaine, in violation of LSA-R.S. 40:966C and R.S. 40:967C, respectively. The defendant pled not guilty at arraignment on April 30, 2007. He filed a motion to appoint a sanity commission on June 11, 2007 and was found competent to stand trial on July 25, 2007. The defendant filed a motion to reappoint a sanity commission on August 27, 2007 and was again found competent to stand trial on December 11, 2007. A hearing commenced on the defendant's motion to suppress evidence on January 8, 2008; however, the hearing was held open at the defendant's request. On January 28,2008, before trial began, the suppression hearing was completed,

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after which the trial judge denied the motion. The case was subsequently tried on January 28 and 29,2008, before a six-person jury, which ended in a mistrial when the jurors could not reach a verdict. On March 12 and 13,2008, the case was re tried before a six-person jury, which again ended in a mistrial when the jurors could not reach a verdict. A third trial was held on March 24,25, and 26,2008, after which the jury found the defendant guilty as charged. On May 5, 2008, the trial judge denied the defendant's motion in arrest of judgment and motions for a new trial. On that same date, the defendant waived sentencing delays and was sentenced to imprisonment at hard labor for four years on each count to run concurrently with one another. Also on May 5, 2008, the State filed a multiple bill alleging the defendant to be a fourth felony offender. The defendant denied those allegations. The defendant filed a timely motion for appeal on May 9, 2008, that was granted. On July 14, 2008, a multiple bill hearing was held, after which the trial judge found the defendant to be a fourth felony offender. On July 14, 2008, the sentence on Count 2 was vacated and the defendant was re-sentenced as a multiple offender to imprisonment at hard labor for 20 years to run concurrently with the sentence on Count 1 and "any other revocation." Following sentencing, the defendant orally moved for an appeal.

FACTS

Lt. Nicholas Huth of the Kenner Police Department testified that on February 22 and 23,2007, he and Detective Kevin Treigle conducted surveillance on the defendant's residence, located at 249 Clemson, Apartment 402, in Kenner, in response to numerous complaints of narcotics activity. The defendant was the
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target of that investigation. On February 23, 2007, Lt. Huth observed a female, later identified as Darkus Bollard, enter that apartment and leave shortly thereafter. Ms. Bollard was stopped and it was discovered that she was in possession of a small bag of marijuana that she had purchased from the defendant. As a result of his conversation with Ms. Bollard, Lt. Huth instructed Detective Treigle to obtain a search warrant for the defendant's apartment. After Ms. Bollard was arrested, the defendant exited Apartment 402. Lt. Huth detained him while they waited for the search warrant. After the keys to the apartment were obtained from the defendant's pocket, Lt. Huth entered the apartment to conduct a protective sweep for officer safety and to make sure no one else was in the apartment, during which he observed a bag of marijuana floating in the toilet. Because the toilet was still flowing, it appeared to him that someone had tried to Hush the marijuana down the toilet or that the toilet was defective. When the protective sweep was completed, Lt. Huth exited the apartment. Later on, Detective Treigle called Lt. Huth and advised him that the search warrant for the defendant's residence had been signed. Lt. Huth and other officers then re-entered the residence and searched it. Detective Treigle subsequently arrived and retrieved a clear plastic bag containing green vegetable matter from the toilet. Once the bag was retrieved, Detective Treigle observed that inside that plastic bag was another clear plastic bag that contained crack cocaine. Detective Treigle also retrieved a box of clear plastic sandwich bags and a digital scale from the apartment. The State and the defense stipulated that if Daniel Waguespack, an expert in the identification and analysis of narcotics were called as a witness, he would testify that he tested the narcotics in this case and found them to be cocaine and marijuana.

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Lt. Louis Mungia of the Jefferson Parish Sheriffs Office, an expert fingerprint examiner, testified that the fingerprints from the defendant's previous conviction of possession of marijuana on January 20,2004 matched the defendant's fingerprints taken in court that day. The defendant's redacted testimony from his first trial was read to the jury during the State's case-in-chief. The defendant testified that the drugs found at 249 Clemson, Apartment 402, on February 23,2007, were not his, and he had no knowledge that they were in that apartment. The defendant denied selling drugs to Ms. Bollard. The defendant explained that, on February 22, 2007, he lived at 247 Clemson, Apartment 1, with his Uncle Donald, which was right across from 249 Clemson. The defendant asserted that he did not go into Apartment 402 on February 23, 2007, as he was too busy picking up trash. The defendant contended that Melvin Anderson lived in Apartment 402. The defendant admitted having gone into Apartment 402 before February 22 and 23,2007, to play chess and talk with Mr. Anderson. The defendant testified that, on February 23, 2007, Lt. Huth stopped Ms. Bollard and another lady. Lt. Huth then walked over to the defendant and demanded that he put his hands behind his back. According to the defendant, Lt. Huth asked him to allow Lt. Huth to enter Apartment 402, but the defendant told Lt. Huth he could not do so because that was not his residence. The defendant testified that Lt. Huth went into Apartment 402 and when Lt. Huth came back out, he asked the defendant who jumped out of the window, and the defendant told him "Ray Vaughn". The defendant testified that he gave Lt. Huth the keys to his truck and permission to search it, which Lt. Huth did. The defendant denied that Lt. Huth
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got the keys to Apartment 402 from him. The defendant explained that the door to Apartment 402 was open and anyone could have walked in. According to the defendant, Lt. Huth told the defendant that ifhe found anything in that apartment, he would charge him with it. The defendant said that there was nobody in that apartment when the police went in. The defendant denied telling Lt. Huth and Detective Treigle that he subleased Apartment 402. Additionally, the defendant testified that he had many prior convictions: on April 4, 1995, he pled guilty to possession of narcotics; on August 31, 1995, he pled guilty to possession of cocaine; on March 28, 1996, he pled guilty to possession with the intent to distribute cocaine and marijuana, resisting an officer, and battery on an officer; on January 20,2004, he pled guilty to possession of marijuana; and on September 13,2004, he pled guilty to possession of cocaine. Lt. Huth and Detective Treigle testified that they did not recall the defendant giving them keys to a truck, and that they did not search a truck that day. After the State rested its case, the defense called Sherman McGee as a witness. Mr. McGee testified that he walked into Apartment 402 on the day in question with his brother-in-law, Nicholas, another man named "Lipinga," and two females to have a "good time," and that nobody else was in that apartment at that time. He testified that after they saw the police, he, his brother-in-law and "Lipinga" went out the back window and jumped the fence, while the two females walked out of the front door. Mr. McGee further testified that there were no drugs "in the area", but that "Lipinga" had marijuana. Mr. McGee claimed that he knew the defendant, and that the apartment he went into that day was not the defendant's apartment. Mr. McGee admitted having prior narcotics convictions.

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COUNSELED ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, the defendant argues that the trial judge erroneously told the jury that the defendant's testimony, which was about to be read to them, was taken in a prior trial that resulted in a mistrial. The defendant further argues that this error was not harmless and, therefore, his conviction must be overturned. The State responds that defense counsel waived the protections afforded to him by law and jurisprudence by requesting that the trial judge inform the jury that the testimony was given at a previous trial. On January 29, 2008, during the first trial, the defendant testified on his own behalf. The case, however, ended in a mistrial. On March 12, 2008, the case was tried for a second time. On the morning of the first day of the second trial, the prosecutor told the trial judge that the State intended to enter into evidence a transcript of the defendant's testimony from the first trial under the authority of State v. Reed, 324 So.2d 373 (La. 1975). The prosecutor stated that, pursuant to Reed and its progeny, he would redact the transcript to delete all references that the testimony was taken during a trial and that he would tell the jury that the testimony was taken from a previous hearing in this matter. The defense counsel objected, noting that the defendant had previously given testimony regarding his prior bad acts and convictions. The State said the case law did not address whether prior convictions were admissible. The trial judge stated that she was not going to admit testimony of the defendant's prior convictions, since the case law did not address it. Rather, testimony of the defendant's bad acts and/or arrests and convictions would be redacted from the transcript, unless he took the stand. The defense counsel then stated that he had no problem with the State using the prior testimony regarding bad acts if the defendant took the stand. -8

The defense counsel agreed to the State's introduction of the part of the transcript wherein the defendant admitted to having a prior conviction for possession of marijuana, since that was an element of the present offense of possession of marijuana, second offense. After hearing arguments of counsel, the trial judge ruled in favor of the State, citing State v. Reed, supra. She also ruled that the transcript was to be redacted so it did not reflect that it was from a previous trial. She said that the transcript would also be redacted to delete references to any bad acts, arrests, or criminal convictions. The defense counsel noted his objection to the transcript being admitted into evidence. The prosecutor objected to the trial judge's ruling whereby she did not allow testimony of the prior convictions to be admitted, noting that the defendant put his credibility at issue when he took the stand under oath. The trial judge again stated that she would not allow testimony regarding prior convictions to be admitted. The prosecutor said he did not redact the portion of the transcript regarding the defendant's prior marijuana conviction because it was an element of the crime for which the defendant was being tried. The trial judge allowed testimony regarding the predicate conviction. On March 13, 2008, the second day of the second trial, there was additional discussion regarding the admission of the defendant's testimony from the first trial. The trial judge ruled that, based on State v. Reeder, 95-2407 (La. App. 4 Cir. 7/16/97),698 So.2d 56, and State v. Woods, 01-1995, p. 14 (La. App. 4 Cir. 10/30/02), 830 So.2d 559, 566, writ denied, 03-0055 (La. 10/3/03), 855 So.2d 307, she was going to permit the State to introduce a redacted copy of the defendant's prior sworn testimony removing any mention of a previous trial. She also ruled

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that reference to the prior convictions would remain because Reeder and Woods permitted it. The trial judge commented that in a pre-trial conference, the defense counsel said he understood and read the cases as she did, but that he might want to waive the protections those two cases afforded and tell the jury that the testimony was from a previous trial. The defense counsel objected to the introduction of the transcript and the prior bad acts or crimes. The prosecutor, defense counsel, and trial judge then discussed the redactions that were made and would be made to the transcript. When the prosecutor said he was ready for the transcript to be read to the jury and placed into evidence, the trial judge asked defense counsel whether he wanted the protections afforded by the case law, defense counsel responded that they were going to waive the protections. After much discussion, the trial judge said she was going to allow the defense to waive the protections that Reeder and Woods afforded. She stated that she was going to instruct the jury that the testimony was from a trial and that it resulted in a mistrial. The defense counsel agreed. The trial judge said that she was going to appease the State by not telling the jury that the prior trial ended in a hung jury, to which defense counsel objected. This second trial ended in a mistrial. On March 24, 2008, during the third trial, the prosecutor said that he intended to offer into evidence a copy of the transcript of the defendant's testimony from his first trial. He stated that they had argued that motion at the second trial, and he wanted to re-urge it again to make it clear for the record. The defense counsel objected. The trial judge said they had done the research previously and her ruling was that it was permissible to admit the transcript into evidence. The defense counsel objected to the admission of the transcript.
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On March 25, 2008, on the second day of the third trial, the prosecutor offered the redacted version of the defendant's prior trial testimony into evidence. As he did in the second trial, the prosecutor again argued that, under State v. Reed, the jury could hear the prior testimony as long as there was no reference to it being a trial. The trial judge said that the jurors would be given the feeling that the prior sworn testimony was not from a trial. She noted, however, that the defense still wished the jury to know that the testimony was from a trial that resulted in a mistrial. The trial judge stated that she wanted the record to be clear that they would have given the defendant the protections the law afforded; however, the defense counsel and the defendant decided to waive those protections and wanted the jury to know that this testimony was from a prior trial. The prosecutor wanted it noted for the record that he objected to the jury being informed that the testimony was from a prior trial. The defense counsel objected to the entire transcript being entered, and the trial judge noted his ongoing objection. The defense counsel told the trial judge she could use whatever argument he made at the previous trial, and that she did not "have to go through it." The trial judge admitted the testimony into evidence and advised the jury that "Ms. Burke" would read the testimony of the defendant that was taken at a prior trial that ended in a mistrial. She said she would read her part and Ms. Burke would read everything else. Afterwards, the transcript of the defendant's prior testimony was read. The prosecutor subsequently introduced into evidence the redacted version of the defendant's prior trial testimony that was read into the record and a copy of the testimony that was published to the jury. These are identical. The defense counsel had no objection.

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In State v. Reed, 324 So.2d 373, 379 (La. 1975), cited by both the defendant and the State in their briefs, the defendant argued that the trial judge erred by allowing the transcript of his testimony from a previous trial to be read to the jury. The Louisiana Supreme Court stated that, contrary to the defendant's assertions, the long-standing federal rule was that a defendant in a criminal case who took the stand in his own behalf and testified without asserting his privilege against selfincrimination thereby waived the privilege as to the testimony given so that it may be used against him in a subsequent trial of the same case. Id. at 380. The Court held that the introduction of the transcript did not violate the defendant's privilege against self-incrimination. Id. The Reed Court also found that a defendant who takes the stand in his own defense is not protected by LSA-C.Cr.P. art. 85i when the State, at a subsequent trial on the same charge, seeks to introduce that testimony to a jury, so long as the State does not make it apparent to the jury that the testimony was from a prior trial. Id. at 381. Additionally, the Supreme Court noted that the prosecutor was careful to describe the transcript as the testimony of the defendant in this matter on a prior occasion when referring to the transcript in front of the jury, however, it was defense counsel who made it plain to the jury through his comments that the testimony was given by the defendant testimony at a prior trial. Id. Finding that this testimony was relevant to prove the elements of the State's case, the Court held that it was admissible in the State's case-in-chief. Id. Similarly, in State v. Woods, 01-1995, p. 14 (La. App. 4 Cir. 10/30102),830 So.2d 559,566, writ denied, 03-0055 (La. 10/3/03),855 So.2d 307, the defendant argued that the trial court erred in overruling his objection to the State's reading of
I LSA-C.Cr.P. art. 857 provides: "The effect of granting a new trial is to set aside the verdict or judgment and to permit retrial of the case with as little prejudice to either party as ifit had never been tried."

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an un-redacted version of his testimony from his first trial, containing references to his prior convictions. The Fourth Circuit found that Reed did not specifically address the issue of prior convictions. However, the Fourth Circuit concluded that Reed was consistent with the proposition that a defendant's admission of prior convictions while testifying at a previous trial was admissible as part and parcel of his testimony in a subsequent trial and found no error in the trial court's admission of the un-rcdacted version of the defendant's testimony in his first trial. Id., 01 1995 at 15, 830 So.2d at 568. In the instant case, the defendant argues that he was prejudiced by the trial court telling the jury "there had not only been a prior trial but that it had ended in a mistrial." The defendant reasons that this could have indicated to the jury that the defendant had taken up much civic resources to bring him to justice, that the state must really believe in this case to try it again and/or that the defendant nearly escaped on a previous mistrial which sounded like a technicality. We find no merit to the defendant's argument. Once the jury was told that this testimony was taken at a prior trial of the defendant, the jury was obviously aware that that trial did not result in the defendant being convicted. Moreover, as the State points out, the defense counsel requested that the jury be informed that the prior trial resulted in a mistrial. The record reflects: THE COURT: ... The defense still is of the position in this trial that they wish the jury to know that this was, in fact, a trial and it resulted in a mistrial ... So I just want the record to be clear that we would have given Mr. Bazley the protections that the cases afforded. However, Mr. Soignet [defense counsel] and his client have decided to waive those protections and they, in fact, wanted the jury to know that this was, in fact, from a prior trial which is why they now know that. The State objected to the jury being informed that the transcript was from a prior trial. The trial court stated:

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