Date: 11-16-2016

Case Style:

Case Number: 50,872-KA

Judge: John Larry Lolley

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney:

J. SCHUYLER MARVIN
District Attorney

JOHN M. LAWRENCE
Assistant District Attorney

Defendant's Attorney:

CAREY J. ELLIS, III
Louisiana Appellate Project

Description: Gerald Bernard Ward was arrested on April 16, 2014, for the sale of .3
grams of cocaine to a confidential informant (“CI”) on May 14, 2013. Ward
was subsequently charged by amended bill of information with distribution
of cocaine in violation of La. R.S. 40:967A(1). He was represented by the
public defender’s office, and declined several plea offers. During discovery,
the state disclosed the identity of the CI to the defense, but the CI was not
called to testify.
During trial, Officer Shawn Poudrier, of the Bossier Police
Department Narcotics Task Force, and Lieutenant Gary Bass, a crime scene
investigator for the Bossier Parish Sheriff’s Office, testified. Audio/video
recording of the alleged transaction and still photographs taken from that
video recording were introduced into evidence by the state. The defense
presented no evidence. The jury found Ward guilty as charged by a verdict
of 11-1.
Ward filed motions for post-verdict judgment of acquittal, new trial,
and reconsideration of sentence, which the trial court denied. Ward also
filed numerous pro se letters and motions which the trial court addressed in
its ruling with reasons for denial. Ward’s motion requesting documents was
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granted, and he was provided a free copy of his bill of information, criminal
case minutes, and documents committing him to custody. This appeal
ensued.
DISCUSSION
Sufficiency of the Evidence
In his first assignment of error, Ward submits that the evidence
adduced at trial was insufficient to prove he committed the offense of
distribution of cocaine. Ward contends that the officer who testified at trial
was too far away to properly identify the person who allegedly sold cocaine
to the CI. Additionally, Ward argues that the video the state submitted of
the transaction does not definitively depict Ward as the seller, and further,
no DNA or fingerprint evidence was submitted to prove Ward ever handled
the three bags which were recovered from the CI. We disagree.
The standard of appellate review for a sufficiency of the evidence
claim 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. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979);
State v. Tate, 2001-1658 (La. 05/20/03), 851 So. 2d 921, cert. denied, 541
U.S. 905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Carter, 42,894
(La. App. 2d Cir. 01/09/08), 974 So. 2d 181, writ denied, 2008-0499 (La.
11/14/08), 996 So. 2d 1086. This standard, now legislatively embodied in
La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to
substitute its own appreciation of the evidence for that of the fact finder.
State v. Pigford, 2005-0477 (La. 02/22/06), 922 So. 2d 517; State v. Dotie,
43,819 (La. App. 2d Cir. 01/14/09), 1 So. 3d 833, writ denied, 2009-0310
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(La. 11/06/09), 21 So. 3d 297. The appellate court does not assess the
credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.
10/16/95), 661 So. 2d 442. A reviewing court accords great deference to a
jury’s decision to accept or reject the testimony of a witness in whole or in
part. State v. Eason, 43,788 (La. App. 2d Cir. 02/25/09), 3 So. 3d 685, writ
denied, 2009-0725 (La. 12/11/09), 23 So. 3d 913.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. An appellate court reviewing the sufficiency of
evidence in such cases must resolve any conflict in the direct evidence by
viewing that evidence in the light most favorable to the prosecution. When
the direct evidence is thus viewed, the facts established by the direct
evidence and inferred from the circumstances established by that evidence
must be sufficient for a rational trier of fact to conclude beyond a reasonable
doubt that defendant was guilty of every essential element of the crime.
State v. Sutton, 436 So. 2d 471 (La. 1983); State v. Speed, 43,786 (La. App.
2d Cir. 01/14/09), 2 So. 3d 582, writ denied, 2009-0372 (La. 11/06/09), 21
So. 3d 299.
Where there is conflicting testimony concerning factual matters, the
resolution of which depends upon a determination of the credibility of the
witnesses, the matter is one of the weight of the evidence, not its sufficiency.
State v. Allen, 36,180 (La. App. 2d Cir. 09/18/02), 828 So. 2d 622, writs
denied, 2002-2595 (La. 03/28/03), 840 So. 2d 566, and 2002-2997 (La.
06/27/03), 847 So. 2d 1255, cert. denied, 540 U.S. 1185, 124 S. Ct. 1404,
158 L. Ed. 2d 90 (2004). In the absence of internal contradiction or
irreconcilable conflict with physical evidence, one witness’s testimony, if
believed by the trier of fact, is sufficient support for a requisite factual
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conclusion. State v. Baker, 49,175 (La. App. 2d Cir. 08/27/14), 148 So. 3d
217. Such testimony alone is sufficient even where the state does not
introduce medical, scientific, or physical evidence to prove the commission
of the offense by the defendant. State v. Moore, 44,429 (La. App. 2d Cir.
08/26/09), 20 So. 3d 1137, writ not cons., 2009-2166 (La. 04/09/10), 31 So.
3d 378.
When the key issue is the defendant’s identity as the perpetrator,
rather than whether the crime was committed, the state is required to negate
any reasonable probability of misidentification. State v. Weary, 2003-3067
(La. 04/24/06), 931 So. 2d 297, cert. denied, 549 U.S. 1062, 127 S. Ct. 682,
166 L. Ed. 2d 531 (2006); State v. Sims, 49,682 (La. App. 2d Cir. 02/27/15),
162 So. 3d 595, writ denied, 2015-0602 (La. 02/05/16), 186 So. 3d 1161;
State v. Johnson, 47,313 (La. App. 2d Cir. 08/08/12), 103 So. 3d 542, writ
denied, 2012-2036 (La. 01/25/13), 105 So. 3d 714. Positive identification
by only one witness is sufficient to support a conviction. State v. Hughes,
2005-0992 (La. 11/29/06), 943 So. 2d 1047; State v. Jefferson, 47,009 (La.
App. 2d Cir. 03/07/12), 91 So. 3d 1007, writ denied, 2012-0751 (La.
11/02/12), 99 So. 3d 661.
Louisiana R.S 40:967A(1) states that it shall be unlawful for any
person knowingly or intentionally:
To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II.

Here, during the defendant’s trial, Lt. Bass testified to establish the
chain of custody of the three bags of cocaine recovered by Off. Poudrier
from the CI. The Northwest Louisiana Crime Lab certified report,
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introduced during Lt. Bass’s testimony, showed that the white material in the
three green bags was determined to contain cocaine. The jury was to decide,
based on the trial testimony and video evidence, if it was reasonable to
believe that Ward was the man selling those bags of cocaine to the CI.
Officer Poudrier provided eyewitness testimony of the transaction
between the CI and Ward. He testified that he met with the CI at an
undisclosed location on the afternoon of the buy. The CI informed Off.
Poudrier that he had arranged a buy from Ward. Officer Poudrier searched
the CI by removing his shoes and socks, shirt and hat and having the CI
unfasten his pants and shake them. Officer Poudrier conducted a pat-down
of the CI and ensured that there were no hidden compartments on the bicycle
the CI was riding. He then gave the CI $30.00 of marked “buy money” and
a key fob audio/video recording device that was attached to a key chain.
Officer Poudrier testified that after the CI left the undisclosed location on his
bicycle, he followed the CI to Montgomery Street, where the buy was to
occur. Officer Poudrier stated:
I observed the CI kind of pull over on the side of the road and Mr. Ward walk out. I didn’t see him walk out of a residence; I saw him walking through a yard, and contact my confidential informant on the street. I saw a hand to hand transaction. I observed the CI hand him some money and Mr. Ward hand him something and then the CI left.

Officer Poudrier followed the CI back to the undisclosed location. At some
point during travel the CI “got away” from him, but Off. Poudrier testified
that he quickly regained sight of the CI. The two met at the undisclosed
location, and the CI got into Off. Poudrier’s vehicle and produced three
small green bags containing what appeared to be rocks of crack cocaine.
The bags were introduced into evidence and published to the jury.
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Officer Poudrier identified the DVD audio/video recording of the
transaction, which was also introduced into evidence and played for the jury.
The recording is shaky because the CI is on a bicycle, and the hand to hand
transaction lasts only seconds. While there is a clear view of the man selling
to the CI, the video did not capture the hand to hand exchange of money and
drugs. Several still photographs of the man selling to the CI were captured
from the video and printed. These photographs show the man selling to the
CI standing in the street, and there are several clear photos of the man’s face.
The photographs were introduced into evidence and published to the jury.
Officer Poudrier identified Ward in open court as the man selling to the CI,
from both his personal observation of the transaction and the
video/photographs.
The evidence was sufficient to sustain Ward’s conviction for
distribution of cocaine. Identification by only one witness, when reasonably
believed by the fact finder, is sufficient to sustain a conviction; therefore,
Off. Poudrier’s eyewitness testimony of the hand-to-hand sale of cocaine to
the CI was sufficient to support Ward’s conviction of distribution. Officer
Poudrier expressly stated that he saw the seller, whom he identified as Ward,
walk up to the CI, and observed the hand-to-hand transaction. While it is
not ideal that Off. Poudrier may have lost sight of the CI for a short time
while the two were traveling back to the undisclosed location, the jury’s
finding that Ward was the individual who sold the cocaine to the CI was
reasonable under Jackson, based on the direct evidence presented. This
assignment of error is without merit.


7

Excessive Sentence
In his second assignment of error, Ward argues that his sentence of 25
years at hard labor, 2 years without benefits, is unconstitutionally harsh and
excessive in light of the facts and circumstances of the case and his personal
history. Specifically, Ward points out that this was not a crime of violence,
the amount of cocaine allegedly sold was small and there is no indication
that he was a dealer of large quantities of drugs. We disagree.
The trial court has wide discretion in imposing sentences within
minimum and maximum limits allowed by the statute; therefore, a sentence
will not be set aside as excessive unless the defendant shows the trial court
abused its discretion. State v. Young, 46,575 (La. App. 2d Cir. 09/21/11), 73
So. 3d 473, writ denied, 2011-2304 (La. 03/09/12), 84 So. 3d 550. A trial
judge is in the best position to consider the aggravating and mitigating
circumstances of a particular case, and, therefore, is given broad discretion
in sentencing. State v. Zeigler, 42,661 (La. App. 2d Cir. 10/24/07), 968 So.
2d 875. The reviewing court does not determine whether another sentence
would have been more appropriate, but whether the trial court abused its
discretion. State v. Esque, 46,515 (La. App. 2d Cir. 09/21/11), 73 So. 3d
1021, writ denied, 2011-2347 (La. 03/09/12), 84 So. 3d 551.
An appellate court utilizes a two-pronged test in reviewing a sentence
for excessiveness. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge
is not required to list every aggravating or mitigating circumstance so long
as the record reflects that he adequately considered the guidelines of the
article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Lathan, 41,855
(La. App. 2d Cir. 02/28/07), 953 So. 2d 890, writ denied, 2007-0805 (La.
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03/28/08), 978 So. 2d 297. Where the defendant’s motion to reconsider
sentence alleges mere excessiveness of sentence, on appeal the reviewing
court is limited to considering whether the sentence is constitutionally
excessive. La. C. Cr. P. art. 881.1; State v. Mims, 619 So. 2d 1059 (La.
1993); State v. Boyd, 46,321 (La. App. 2d Cir. 09/21/11), 72 So. 3d 952.
A sentence violates La. Const. Art. I, § 20 if it is grossly out of
proportion to the seriousness of the offense or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Dorthey,
623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La. 1980).
A sentence is considered grossly disproportionate if, when the crime and
punishment are viewed in light of the harm done to society, it shocks the
sense of justice. State v. Weaver, 2001-0467 (La. 01/15/02), 805 So. 2d 166;
State v. Robinson, 40,983 (La. App. 2d Cir. 01/24/07), 948 So. 2d 379.
Louisiana R.S. 40:967B(4)(b) provides that a person convicted of
distribution of cocaine:
Shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

At sentencing, the trial court reviewed the presentence investigation report
(“PSI”) prepared before Ward’s sentencing hearing. The trial court noted
that, in connection with the PSI, Ward was interviewed and maintained that
this entire case did not involve him. During his PSI interview, Ward stated
the CI was not a CI, but, rather, lived at 324 Montgomery Street and already
“had the drugs on him.” Ward also stated he is addicted to cocaine and
requested probation and inpatient treatment for his addiction.
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The trial court also reviewed Ward’s extensive criminal history, which
includes several convictions for simple battery, a conviction for attempted
manslaughter, and a myriad of drug-related convictions. Ward has
previously been referred to drug court connected to past convictions for
possession of cocaine. He has been arrested for domestic abuse, but his
girlfriend refused to testify against him. The trial court noted that Ward
joined a street gang during his teenage years, obtained his GED while
incarcerated on an unrelated charge, and his employment history is scant.
Ward has never been married, but has two children. He takes medication for
a congenital brain disorder that causes seizures, and has received disability
payments for years. The trial court further noted that Ward is considered a
third-felony offender, who consistently denies any guilt, and has a history of
violent behavior and drug-related activity. Ultimately, it concluded that
Ward is a “potential serious threat to public safety,” and found that a lesser
sentence would deprecate the seriousness of the offense.
Considering the facts of this case and this particular defendant, the
sentence imposed by the trial court does not shock the sense of justice, nor is
it grossly disproportionate to the severity of the offense. The trial court
considered the facts of this case, the information in the PSI, and the
sentencing guidelines set forth in La. R.S. 40:967B(4)(b), and it has not
abused its discretion. Ward’s sentence is not constitutionally excessive, and
this assignment of error is without merit.

Outcome:

For the foregoing reasons, the conviction and sentence of Gerald Bernard Ward is affirmed.
AFFIRMED

Plaintiff's Experts:

Defendant's Experts:

Comments:

Louisiana Department Of Corrections Offender Info