Case Number: 51,778-KA
Judge: Gay C. Gaskins
Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
Plaintiff's Attorney: GARY V. EVANS
HAINES CLOYCE CLARK, III
Assistant District Attorneys
Defendant's Attorney: MICHAEL JOHN VERGIS
Description: On June 8, 2016, Donna Richardson, Simonís parole officer, paid a
visit to Simonís home, located at 400 Topeka Street in Mansfield, Louisiana.
Richardson testified that when she pulled up to the home, Simon, who was
outside washing his carport, noticed her and began walking into the house.
Richardson asked him to stop, but when he continued, she followed him into
the home. They immediately stopped in the kitchen area, where she noticed
what appeared to be a small amount of loose marijuana on the kitchen table,
along with some sandwich bags. After she asked Simon what the substance
was, he admitted that it was indeed marijuana. Later, when she asked Simon
why he had not stopped, he answered that he knew the marijuana was on the
Richardson placed Simon under arrest and called for backup to search
the house because Sharice Powell, Simonís girlfriend; Terrance Lane, his
cousin; and Khadijah Cotton, Laneís girlfriend, were also present. Law
enforcement officers, including Sgt. Justin Taylor and Lt. Chato Atkins, both
with the Desoto Parish Sheriffís Office, responded. Taylor was a narcotics
investigator, and Atkins was a supervisor of the narcotics agents.
Richardson searched Simonís bedroom, where she found loose money
on a dresser. Under his bed, the officers found two boxes full of money in
sandwich bags. The money, which totaled approximately $7,000, was
mostly in small bills, separated by denomination into bags.
Next to Simonís bedroom was his cousinís bedroom. A red first aid
bag containing marijuana was found inside a dresser drawer in this bedroom.
On the bedroom floor was a Crown Royal bag, also containing marijuana.
Some of the marijuana had been packaged into little plastic bags.
During the search of the home, the officer also discovered 1.2 pounds
of marijuana in a shopping bag atop clothes in a laundry basket in front of a
washer or dryer that was located in the combined laundry/kitchen area of the
Powell, Lane, and Cotton were arrested with Simon. All four were
charged with possession of marijuana with intent to distribute, in violation of
La. R.S. 40:966(A)(1).
Officer Richardson, Lt. Atkins, and Sgt. Taylor testified at trial about
what took place at Simonís home on the date of his arrest. The officers also
identified exhibits containing the marijuana found on the kitchen table, the
first aid bag, the Crown Royal bag, the plastic bags that contained the cash
found under Simonís bed, the 1.2 pounds of marijuana found in the laundry
basket, and the sample of marijuana sent to the lab for testing.
Officer Atkins testified that Simon reported he was not employed.
The marijuana and the large amount of cash found in the house led Atkins to
believe that Simon was selling marijuana.
Alanna Brauer, a forensic chemist with the North Louisiana Crime
Lab, was accepted as an expert in forensic chemistry. She testified that the
samples from the drugs recovered from Simonís house tested positive for
Carl Townley was tendered and accepted as an expert in narcotics
investigation, packaging, use and sales, and simple possession versus
possession with intent to distribute. Townley retired from the Caddo Parish
Sheriffís Office after 32 years, with 27 years served in the narcotics division
and in the street level interdiction unit. Townley testified that certain
elements serve as indicators of whether someone is a drug user or a drug
seller, including the drug packaging, the amount of drugs, the amount and
denomination of currency found, and the presence or absence of personal
Having reviewed the police reports, Townley noted that officers
searching Simonís home found a total of 694 grams, or approximately 1.5
pounds of marijuana, some of it separated into sandwich bags, and over
$7,000 in small bills, separated into sandwich bags. The officers did not
find any smoking devices that would indicate the marijuana was for personal
In Townleyís opinion, a normal user would smoke one-half to one
gram of marijuana a day, whereas a heavy user might smoke up to three
grams. Based on these figures, Townley believed that the amount of
marijuana recovered from Simonís home would last a normal user for two
years. However, Townley commented that due to the limited shelf life of
marijuana, it would dry out and would lose its potency if stored in plastic
Townley agreed that the small amount of marijuana found on the
kitchen table, by itself, might be for personal use. However, in Townleyís
expert opinion, the total amount of marijuana and cash found indicated that
the marijuana was intended for sale rather than just personal use. Townley
also testified that it was not uncommon to find multiple persons selling
marijuana from one location. Townley further explained that it was not
uncommon for officers to find that the marijuana was kept separate from the
cash, and that this setup could indicate distribution. Townley estimated that
the retail value of the marijuana was $10 per gram, or almost $7,000 for the
After the state rested, the defense called Terrance Lane, Smithís
cousin. Lane testified that he also lived at 400 Topeka Street, and he was
there on June 8, 2016, with his girlfriend, the defendant, and Simonís
girlfriend, Sharice Powell. Lane confirmed that he was awakened around
9:40 a.m. by the officers and that he was handcuffed while they searched the
house. He was later arrested and charged with possession of marijuana with
intent to distribute. Lane pled guilty and was sentenced to seven years at
hard labor, suspended, and four years of supervised probation.
Lane stated that he and Powell purchased over two pounds of
marijuana to smoke with friends at a gathering they were planning, that the
marijuana belonged to him and Powell, and that Simon knew nothing about
the marijuana. Lane said that they did not tell Simon about purchasing the
marijuana because he would be mad since Simon was still on parole. Lane
testified that he purchased the marijuana from an unknown male who called
Lane as he was traveling through the area.
Lane insisted that he did not have any partnership with Simon and that
he was not selling the marijuana. When asked about the packages of
marijuana found in his room, Lane admitted that he would sell some of the
marijuana found in his room if someone was interested.1
Lane testified that he knew nothing about the money found in Simonís
bedroom and insisted that the money was not proceeds from selling the
marijuana. Lane confirmed that he earned money working at a pecan plant
and stacking bricks. Lane also testified that Simon did not have a job, but he
thought Simon did a little work at the pecan plant.
Sharice Powell was called as a witness on behalf of Simon. She
testified that she had been with Simon for three years and that she lived with
him at 400 Topeka Street. Powell stated that she had been arrested and
charged with possession with intent to distribute. Like Lane, Powell swore
that Simon knew nothing about the marijuana that she and Lane purchased
to share with friends at a gathering.
Powell testified that she and Lane each contributed $300 to purchase
two pounds of marijuana. She insisted that neither she, nor Lane, sold
marijuana, and she stated that she worked at McDonaldís. Powell testified
that the marijuana in the laundry basket was in a shopping bag and was
covered with clothes. Powell explained that the money found underneath
Simonís bed came from an auto accident settlement and that he used it to
loan money to others. Powell denied knowing about the marijuana found in
The jury returned a verdict of guilty as charged of possession with
intent to distribute marijuana.
1 Lane testified that he had packaged the marijuana in the Crown Royal bag in case anyone wanted to purchase some. There were apparently at least 12 Baggies of marijuana in the Crown Royal bag.
The trial judge ordered a presentence investigation report and
scheduled sentencing. Simon appeared for sentencing on April 6, 2017. The
trial judge confirmed that both sides had reviewed the PSI report and had no
The trial judge noted that the instant conviction is Simonís third
conviction for possession with intent to distribute, with the first conviction
in 2006 and the second in 2007. Simon was still on probation for the 2006
conviction when he committed the second offense in 2007 and his probation
was revoked. Simon had been released on good-time parole supervision on
February 14, 2013, for the drug convictions. The trial judge further
observed that Simon was arrested in 2013 for unlawful presence of a sex
offender and was sentenced to 120 days in parish jail. The trial judge noted
that Simon was still on parole at the time he committed the instant offense.
The trial judge informed Simon that he faced a potential sentencing
range of 5-30 years at hard labor. Having considered Simonís criminal
history, the trial judge found that Simon had no intention of changing his
criminal ways. Simon was sentenced to 20 years at hard labor, to run
consecutively to his remaining sentences for the two prior drug convictions.
Simon was given credit for time served and advised that he had two years
from the date his conviction and sentence were final to seek post-conviction
Simon, who did not file a motion to reconsider sentence, appealed his
conviction and sentence.
Sufficiency of the evidence
Simon contends in his first assignment of error that there was
insufficient evidence to prove beyond a reasonable doubt that he was guilty
of possession of marijuana with intent to distribute.
Simon asserts that the state failed to prove that he was in actual or
constructive possession of the marijuana because there was no evidence
showing that he knew about any more than the small amount of marijuana
found on the kitchen table, an amount consistent with personal use and not
distribution. Simon points out that the state failed to show that he had
dominion and control over the marijuana in the laundry basket or in Laneís
room, or that he had actual knowledge of the marijuana in those locations.
Simon argues that both Lane and Powell admitted that they purchased
the marijuana found in the laundry basket and in Laneís room, and that they
did not tell Simon about it. Simon further maintains that, at most, he is
guilty of only possession of the small amount of marijuana on the kitchen
table. Accordingly, Simon contends that the evidence presented at trial was
only sufficient to show that he possessed a small amount of marijuana and a
large amount of cash, but insufficient to show that he was selling marijuana.
Simon echoes Lane and Powellís assertions that the cash was from a
settlement regarding an auto accident, even though he presented no evidence
of this at trial.
The state argues that Simon demonstrated guilty knowledge by
running back inside the house when his parole officer appeared and
admitting that he did so because he knew the marijuana was on the kitchen
table. The state contends that Simon had actual and constructive knowledge
of the evidence of distribution because all of the marijuana was found in
areas of his home where he had direct access Ė the kitchen, the laundry area,
and the bedroom immediately adjacent to Simonís room. Furthermore,
Simon had no job, yet he had approximately $7,000 in small bills stored in
separate sandwich bags under his bed. The state asserts that the
circumstantial evidence indicated that Simon was selling marijuana, and it
was not for personal use, in light of the large amount found, some of which
was individually packaged; the large amount of cash, also individually
packaged; and the absence of personal use devices. Finally, the state
maintains that the verdict suggests that the jury did not find Lane and Powell
to be credible witnesses. The state argues, therefore, that the evidence was
sufficient to support a conviction for possession of marijuana with intent to
In a reply brief, Simon contends that the state failed to provide direct
evidence that he knew of the marijuana in the house other than the amount
on the kitchen table, and absent that direct evidence, the issue of his
knowledge about the other marijuana was not a credibility issue to be
determined by the jury. Simon argues that the issue of whether he had
constructive knowledge does not involve the weighing of evidence or a
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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 2001-1658 (La. 5/20/03), 851 So. 2d 921. The appellate court does not
assess the credibility of witnesses or reweigh evidence. State v. Smith, 94
3116 (La. 10/16/95), 661 So. 2d 442. A reviewing court accords great
deference to a juryís decision to accept or reject the testimony of a witness
in whole or in part. State v. Eason, 43,788 (La. App. 2 Cir. 2/25/09), 3 So.
3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So. 3d 913, cert. denied,
561 U.S. 1013, 130 S. Ct. 3472, 177 L. Ed. 2d 1068 (2010); State v. Hill,
42,025 (La. App. 2 Cir. 5/9/07), 956 So. 2d 758, writ denied, 2007-1209 (La.
12/14/07), 970 So. 2d 529.
Direct evidence provides proof of the existence of a fact, for example,
a witnessís testimony that he saw or heard something. State v. Lilly, 468 So.
2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral
facts and circumstances from which the existence of the main fact may be
inferred according to reason and common experience. Id. When
circumstantial evidence is used to prove the commission of the offense, La.
R.S. 15:438 mandates that assuming every fact to be proved that the
evidence tends to prove, in order to convict, it must exclude every
reasonable hypothesis of innocence. State v. Robinson, 47,437 (La. App. 2
Cir. 11/14/12), 106 So. 3d 1028, writ denied, 2012-2658 (La. 5/17/13), 117
So. 3d 918. The trier of fact is charged with weighing the credibility of this
evidence, and on review, the Jackson standard is applied, giving great
deference to the fact finderís conclusions. State v. Hill, 47,568 (La. App. 2
Cir. 9/26/12), 106 So. 3d 617.
Where there is conflicting testimony about 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. Glover, 47,311 (La. App. 2 Cir. 10/10/12), 106 So. 3d 129, writ
denied, 2012-2667 (La. 5/24/13), 116 So. 3d 659; State v. Speed, 43,786 (La.
App. 2 Cir. 1/14/09), 2 So. 3d 582, writ denied, 2009-0372 (La. 11/6/09), 21
So. 3d 299. The trier of fact is charged to make a credibility determination
and may, within the bounds of rationality, accept or reject the testimony of
any witness; thus, the reviewing court may impinge on that discretion only
to the extent necessary to guarantee the fundamental due process of law.
State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied, 531
U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000).
La. R.S. 40:966(A)(1) provides that it is unlawful for a person to
possess with intent to distribute a controlled dangerous substance or
controlled substance analogue classified in Schedule I, which includes
To convict a defendant of possession of a controlled dangerous
substance with intent to distribute, the state must prove beyond a reasonable
doubt that he knowingly or intentionally possessed the contraband and that
he did so with the intent to distribute it. State v. Howard, 49,965 (La. App. 2
Cir. 6/24/15), 169 So. 3d 777, affíd, 2015-1404 (La. 5/3/17), 226 So. 3d 419;
State v. Williams, 47,574 (La. App. 2d Cir. 11/14/12), 107 So. 3d 763, writ
denied, 2013-0079 (La. 6/14/13), 118 So. 3d 1080.
Intent to distribute a controlled dangerous substance is a specific
intent crime. State v. Credeur, 11-234 (La. App. 3 Cir. 11/23/11), 81 So. 3d
741. Specific criminal intent is that state of mind which exists when the
circumstances indicate that the offender actively desired the prescribed
criminal consequences to follow his act or failure to act. La. R.S. 14:10(1).
As a state of mind, specific intent need not be proven as a fact, but may be
inferred from the circumstances of the offense and the defendantís actions.
State v. Thornton, 47,598 (La. App. 2 Cir. 3/13/13), 111 So. 3d 1130. Intent
to distribute illegal drugs may be established by proving circumstances
surrounding the defendantís possession which give rise to reasonable
inferences of intent to distribute. State v. Holden, 45,038 (La. App. 2 Cir.
1/27/10), 30 So. 3d 1053, writ denied, 2010-0491 (La. 9/24/10), 45 So. 3d
The state need not prove the defendant actually possessed the drugs,
as evidence of constructive possession is sufficient. State v. Howard, supra;
State v. Holden, supra. Constructive possession is established by evidence
that the drugs were within the defendantís dominion and control and that the
defendant had knowledge of their presence. Id. Guilty knowledge is an
essential element of the crime of possession of contraband, and such
knowledge can be inferred from the circumstances. State v. Toups, 2001
1875 (La. 10/15/02), 833 So. 2d 910; State v. Anderson, 36,969 (La. App. 2
Cir. 4/9/03), 842 So. 2d 1222.
Factors to be considered in determining whether a defendant exercised
dominion and control sufficient to constitute constructive possession include
the defendantís knowledge that drugs were in the area, the defendantís
relationship with other persons found in actual possession, the defendantís
access to the area where the drugs were found, evidence of drug
paraphernalia or of recent drug use, and the defendantís physical proximity
to the drugs. See, State v. Howard, supra; State v. Toups, supra; State v.
Five factors have been identified as useful in determining whether
circumstantial evidence is sufficient to prove intent to distribute a controlled
dangerous substance. The factors include: (1) whether the defendant ever
distributed or attempted to distribute the controlled dangerous substances;
(2) whether the drug was in a form usually associated with possession for
distribution to others; (3) whether the amount of the drug created an
inference of an intent to distribute; (4) whether expert or other testimony
established that the amount of drug found in the defendantís possession is
inconsistent with personal use; and (5) whether there were any
paraphernalia, such as sandwich bags or scales, evidencing an intent to
distribute. State v. Cummings, 46,038 (La. App. 2 Cir. 1/26/11), 57 So. 3d
499, writ denied, 2011-0341 (La. 6/17/11), 63 So. 3d 1037. Mere possession
of contraband does not amount to evidence of intent to distribute unless the
quantity is so large that no other inference is possible. State v. Holden,
supra. The amount of drugs may be a relevant factor, but regardless of the
amount, intent to distribute must still be proven. State v. Howard, 2015
1404 (La. 5/3/17), 226 So. 3d 419; State v. Ellis, 2014-1511, (La. 10/14/15),
179 So. 3d 586.
In State v. Howard, supra, this Court and the state supreme court
upheld Howardís conviction for possession of marijuana with intent to
distribute. In a bedroom where Howard was lying in bed, officers found
four bags containing a total of 11 grams of marijuana in a larger bag tied
around the waistband of Howardís boxer shorts that were on the bedroom
floor. Also found in the bedroom or its closet were another bag containing 7
grams of marijuana, a box of plastic sandwich bags, some jewelerís bags, a
gun, and an empty prescription bottle. Howard told the police that the
marijuana belonged to him for personal use. No cash was found, but no
smoking paraphernalia or devices, indicating the marijuana was intended for
personal use, were found either.
Simonís parole officer and the assisting law enforcement officers
found a total of 694 grams of marijuana in Simonís house, with some on
Simonís kitchen table, some in a laundry basket in Simonís kitchen/laundry
area, and the rest in two bags located in Laneís bedroom. Simon admitted to
his parole officer that he knew there was marijuana in the house, and Simon
had access to all rooms containing the marijuana. The evidence was
sufficient to infer that Simon had dominion and control over the marijuana,
given Simonís physical proximity and access to the drugs.
Consistent with the distribution of drugs, a large amount of marijuana,
some of it individually packaged in plastic sandwich bags, was found in
Simonís house. Also consistent with the distribution of drugs, a large
amount of cash in small denominations, separated into plastic sandwich
bags, was found under Simonís bed. In addition, Simon reported that he did
not have a job or steady source of income to account for that money. The
officers did not find evidence of personal use paraphernalia or devices that
would indicate that the 694 grams of marijuana was for personal use. The
stateís expert, Townley, testified that this amount would be equivalent to
two yearsí worth of marijuana for a normal user and one yearís worth for a
heavy user, except that the marijuana would spoil in the manner in which it
was found packaged. Townley testified that these factors indicated the
marijuana was for distribution rather than personal use. Townley also
estimated that the marijuana had a retail value of almost $7,000. In light of
the amount of marijuana and cash found, and the packaging consistent with
distribution, the evidence was sufficient to infer that Simon had intent to
distribute the marijuana.
Lane and Powell, two of Simonís co-perpetrators who were also
charged with possession with intent to distribute, testified that the marijuana
belonged only to them for their personal use, sharing with friends, and
occasional sales. Without much elaboration, Powell offered that the cash
hidden under Simonís bed was the proceeds from an auto accident. Powell
stated that she and Lane each contributed $300 to purchase the marijuana.
Even allowing for a lower price for marijuana purchased in bulk instead of
by the gram, it is difficult to believe that two pounds of marijuana could be
obtained for $600. While Lane and Powell insisted that Simon knew
nothing about any of the marijuana, the verdict indicates that the jury did not
find their testimony to be credible.
Considering the evidence in a light most favorable to the prosecution,
the evidence was sufficient for the jury to conclude that all elements of the
charge of possession of marijuana with intent to distribute were proven
beyond a reasonable doubt. Simonís assignment of error regarding the
sufficiency of the evidence is without merit.
Simon contends in his second assignment of error that the trial courtís
determination that the defendant failed to make a prima facie showing of a
Batson violation was error.
Trial in this matter began on January 23, 2017, with jury selection by
the state and the defendantís appointed counsel. Four panels of 12
prospective jurors each were brought before the court.
The first panel was composed of three African-American prospective
jurors and nine Caucasian prospective jurors. Neither side made any
challenges for cause. The state made four peremptory challenges, three of
which were against African-American potential jurors, while the defense
peremptorily challenged three Caucasian potential jurors. From the first
panel, five Caucasian jurors were empaneled on the jury.
The second panel was composed of five African-American
prospective jurors and seven Caucasian prospective jurors. The state
challenged five potential jurors for cause; three of these potential jurors were
African-American. The defense objected to three of the challenges for
cause, but withdrew one of these objections. Four of the five challenges for
cause were granted. The defense made no challenges for cause. The state
raised one peremptory challenge, against the same African-American
prospective juror who was not excused for cause. 2 The defense
peremptorily challenged two persons for cause, both Caucasian.
At this point, the defense objected and claimed a Batson violation.3
The defense argued that out of the five peremptory challenges that the state
had so far exercised, four of them were for African-American jurors, and
that the state had peremptorily excluded all three African-American persons
on the first panel. The trial judge stated that he would review the issue from
the perspective of the state of the jury panel at that time, which showed 10
jurors seated so far, and two of the jurors were African-American. The trial
court found that there was no established pattern showing that the state had
systemically used its peremptory challenges to exclude African-Americans
from the jury.
2 The record reveals that the state challenged him for cause on the grounds that he believed marijuana should be legalized, he could not judge another person, and he could not say that he could render a verdict to convict. The defense objected. The trial court denied the challenge for cause, finding that this prospective juror, who was AfricanAmerican, had been ďrehabilitatedĒ during the defenseís voir dire questions.
3 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
From the second panel, two African-Americans and three Caucasians
were empaneled on the jury. After the second panel, the jury was composed
of two African-Americans and eight Caucasians. The state had exercised a
total of five peremptory challenges, four of which were against African
American potential jurors.
The third panel was composed of three African-American potential
jurors and nine Caucasian potential jurors. One Caucasian prospective juror
was excused by the judge. The state challenged two prospective jurors for
cause: one African-American and one Caucasian. The defense did not
object to either challenge for cause, and both were granted. The defense did
not challenge anyone for cause. The state peremptorily challenged one
potential Caucasian juror, while the defense peremptorily challenged four
potential Caucasian jurors.
Next, the state made two backstrikes, peremptorily challenging one
African-American potential juror and one Caucasian potential juror. The
defense made one backstrike, peremptorily challenging one Caucasian
potential juror. The only person added to the jury from the third panel was
an African-American juror. The defense raised a second Batson violation
claim. The trial judge observed that there was no pattern of exclusion
because three African-Americans jurors had been empaneled on the jury at
that point. The defendantís attorney stated that he did not want to argue, and
asked that the court simply note his objection.
After the third panel, the jury was composed of three African
American jurors and eight Caucasian jurors. The state had exercised a total
of eight peremptory challenges, five of which had been used to exclude
African-American prospective jurors from the panel.
The fourth panel was composed of seven African-American
prospective jurors and five Caucasian prospective jurors. However, one
potential juror did not appear for jury duty, while another potential juror
arrived late and fell asleep. The state challenged four prospective jurors, all
of whom were African-American, for cause. The defense did not object to
any of these challenges for cause, and all were granted. The defense raised
no challenges for cause. The state made no peremptory challenges, while
the defense peremptorily challenged one Caucasian potential juror. This left
three African-American potential jurors and four Caucasian potential jurors.
The next potential juror on the list was empaneled to the jury, bringing the
total to 12, with three African-American jurors and nine Caucasian jurors.
The court proceeded with selection of an alternate juror, who was Caucasian.
Simon argues that a prima facie showing of a Batson violation was
made when the state peremptorily challenged all three of the African
American potential jurors from the first panel and another African-American
potential juror from the second panel. In other words, from two panels, four
of the five peremptory challenges raised by the state were used to exclude
African-American prospective jurors. Simonís attorney raised a second
challenge after a fifth African-American potential juror was excluded during
the third panel but then decided not to argue the objection. Simon contends
that the issue is whether the state excluded any of these jurors on the basis of
race and that the trial court erred in overruling his Batson challenge on
grounds that not all African-American prospective jurors were excluded
from the jury.
The state contends that the issue is whether the defendant successfully
proved that the stateís exercise of its peremptory challenges demonstrated a
pattern of purposeful discrimination against African-American jurors. The
state argues that the trial court was correct in concluding that there was no
prima facie showing because the defendant failed to demonstrate that the
state established a pattern of using its peremptory challenges to purposefully
exclude African-Americans from the jury.
An exercise by the state of its peremptory strikes to remove potential
jurors from the venire panel solely on the basis of race or gender violates the
Equal Protection Clause of the United States Constitution. See Batson v.
Kentucky, supra. Batson was codified in La. C. Cr. P. art. 795.
In State v. Crawford, 2014-2153, pp. 27-28 (La. 11/16/16), 218 So. 3d
13, 30, our supreme court discussed the Batson analysis:
Batson and its progeny from this court provide a three-step process to guide courts in evaluating a claim of racial discrimination in the voir dire process: (1) a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; (2) if the requisite showing has been made, the prosecution ďmust demonstrate that Ďpermissible racially neutral selection criteria and procedures have produced the monochromatic result;í Ē and (3) in light of the partiesí submissions, the trial court must determine if the ďdefendant has established purposeful discrimination.Ē The burden of persuasion never shifts from the opponent of the strike. However, after the opponent of the strike establishes a prima facie case of racial discrimination, the burden of production shifts to the proponent of the strike to articulate race-neutral reasons for its use of peremptory challenges. Not until steps one and two of the Batson test have been satisfied is the trial courtís duty under step three triggered.
A violation of a prospective jurorís equal protection rights under
Batson is proven by evidence of a racially discriminatory purpose, not a
racially discriminatory result. State v. Dorsey, 2010-0216 (La. 9/7/11), 74
So. 3d 603, cert. denied, 566 U.S. 930, 132 S. Ct. 1859, 182 L. Ed. 2d 658
(2012); State v. Green, 94-0887 (La. 5/22/95), 655 So. 2d 272. Thus, the
sole focus of the Batson inquiry is upon the intent of the prosecutor at the
time he exercised his peremptory strikes. State v. Dorsey, supra; State v.
To establish a prima facie case, the objecting party must show: (1) the
striking partyís challenge was directed at a member of a cognizable group;
(2) the challenge was peremptory rather than for cause; and (3) relevant
circumstances sufficient to raise an inference that the peremptory challenge
was used to strike the venireperson on account of his or her being a member
of that cognizable group. If the trial court determines the opponent failed to
establish the threshold requirement of a prima facie case (step one), then the
analysis is at an end and the burden never shifts to the proponent of the
strike to articulate neutral reasons (step two). State v. Nelson, 2010-1724
(La. 3/13/12), 85 So. 3d 21.
Regarding the approach to determine whether the defendant has made
a prima facie case, our supreme court has stated:
The defendant may offer any facts relevant to the question of the prosecutorís discriminatory intent to satisfy this burden. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination.
State v. Green, 94-0887 at p. 24, 655 So. 2d at 288.
No formula exists for determining whether the defense has established
a prima facie case of purposeful racial discrimination. State v. Berry, 51,213
(La. App. 2 Cir. 5/17/17), 221 So. 3d 967. A trial judge may take into
account not only whether a pattern of strikes against African-American
venirepersons has emerged during voir dire, but also whether the
prosecutorís questions and statements during voir dire examination and in
exercising his challenges may support or refute an inference of
discriminatory purpose. State v. Jacobs, 1999-0991 (La. 5/15/01), 803 So.
2d 933, cert. denied, 534 U.S. 1087, 122 S. Ct. 826, 151 L. Ed. 2d 707
Simon is African-American. However, the mere invocation of Batson
when minority prospective jurors are peremptorily challenged in the trial of
a minority defendant does not present sufficient evidence to lead to an
inference of purposeful discrimination. State v. Draughn, 2005-1825 (La.
1/17/07), 950 So. 2d 583, cert. denied, 552 U.S. 1012, 128 S. Ct. 537, 169 L.
Ed. 2d 377 (2007). In Draughn, the stateís exercise of peremptory
challenges to exclude four African-American potential jurors, by itself, was
considered insufficient to support a prima facie finding under Batson.
Bare statistics alone are insufficient to support a prima facie case of
discrimination. State v. Dorsey, supra. The determination of whether a
prima facie case was established is fact-intensive, and per se rules regarding
numbers are inconsistent with Batson, which requires consideration of all
relevant circumstances. State v. Duncan, 99-2615 (La. 10/16/01), 802 So.
2d 533. The defendant must present facts, not just numbers alone, in the
attempt to establish a prima facie case. Id.
In Duncan, the defendant claimed that the stateís use of five of its
eight peremptory challenges to exclude African-American potential jurors
violated Batson, but the Louisiana Supreme Court held that the defendantís
reliance on bare statistics in an attempt to establish a prima facie case was
misplaced. While the supreme court in Duncan recognized that the mere
presence of African-Americans on the jury did not bar a finding of a prima
facie case of discriminatory intent, it also noted that the fact that the state did
not exclude all African-Americans from the jury may be considered in the
determination of whether a prima facie case existed.
In State v. Dorsey, supra, the defendant claimed that the stateís
peremptory challenge to five of the eight African-American prospective
jurors was a Batson violation. The trial court denied the objection, finding
no systematic pattern of exclusion based on race. The Louisiana Supreme
Court held that the defendantís reliance on statistics alone did not support a
prima facie case of racial discrimination. The court noted that while there
was a disparity in the stateís use of its peremptory challenges, the defendant
failed to present any facts to support a prima facie case of purposeful
The trial court plays a unique role in the dynamics of voir dire, for it
is the court that observes firsthand the demeanor of the attorneys and the
venirepersons, the nuances of questions asked, the racial composition of the
venire, and the general atmosphere of the voir dire that simply cannot be
replicated from a cold transcript. See State v. Jones, 42,531 (La. App. 2 Cir.
11/7/07), 968 So. 2d 1247. The trial courtís determination that the defense
has failed to set forth a prima facie case of purposeful discrimination merits
great deference on appeal. State v. Berry, supra; State v. Tucker, 591 So. 2d
1208 (La. App. 2 Cir. 1991), writ denied, 594 So.2d 1317 (La. 1992).
Simonís initial Batson challenge was based solely on the ground that
four of five peremptory challenges exercised by the state during the first two
panels were used to strike African-American potential jurors. The first
factor to establish a prima facie case was clearly met, as those four potential
jurors were African-American. Regarding the second factor to establish a
prima facie case, the first three African-American potential jurors were only
peremptorily challenged, and the fourth was struck by peremptory challenge
after the trial court denied the stateís challenge for cause. Simonís attorney
made a second Batson objection after the stateís fifth peremptory challenge
of an African-American prospective juror. However, Simonís attorney then
elected not to argue it, thereby abandoning the objection and the defendantís
burden to show a prima facie case of purposeful discrimination as to that
Simon presented no argument or facts to establish the prosecutionís
discriminatory intent other than the number of peremptory strikes made.
Simon presented no facts regarding the prosecutorís statements or actions,
and there was no comparison of the prosecutorís statements, questions, or
comments toward the African-American and Caucasian potential jurors to
establish that the prosecutor exercised his peremptory challenges with a
discriminatory intent. Based on this scant argument and considering the
stateís use of four out of five peremptory challenges to strike African
American potential jurors and that two African-American jurors were
already selected for the jury at that time, the trial judge found no systematic
pattern of discriminatory intent.
From our review of each peremptory challenge by the prosecution, the
responses of the jurors who were peremptorily struck, and the prosecutorsí
statements, questions, and comments during voir dire, we do not discern any
inference of a race-based use of peremptory challenges by the prosecution:
An African-American female on the first panel knew a couple of Simonís family members, and she also thought recreational use of marijuana should be legalized.
Another African-American female on the first panel had an incident involving a fight with her sister, but was not arrested. She admitted that she sometimes holds ill will against law enforcement.
An African-American male on the first panel had been arrested for rape; the charges were ultimately dismissed.
A Caucasian female on the first panel had been convicted of a crime but it was expunged. She thought marijuana should be legalized for recreational use.
An African-American male on the second panel had been accused of crimes in the past, although he had never been convicted. He was also very interested in the potential economic impact of the legalization of marijuana, and considered moving to California to study the industry.
A Caucasian male on the third panel thought marijuana should be legalized for medicinal purposes, and his grandfather had a prescription for medical marijuana to treat Parkinsonís disease.
An African-American male on the third panel knew Simonís family and would see them ďout and about,Ē but he didnít know the defendant personally. He also had a cousin convicted of possession of crack cocaine in Desoto Parish six years earlier, and thought marijuana should be legalized for medical and recreational purposes.
A Caucasian male on the third panel was hearing impaired and was given a hearing device during voir dire to help him. He also had difficulty comprehending an analogy used by the prosecutor, and at one point during questioning, the trial judge asked the prosecutor if he wanted the judge to help him out.
In conclusion, recognizing the deference owed to the trial court, the
defendantís reliance on statistical data alone, the voir dire responses of the
potential jurors peremptorily challenged by the state, and the fact that three
African-Americans were on the jury despite the state not exhausting all of its
peremptory challenges, we conclude that the trial courtís determination that
Simon failed to establish a prima facie case of racial discrimination was not
an abuse of discretion. Accordingly, this assignment of error is without
In his third assignment of error, Simon contends that the trial court
erred by imposing a constitutionally harsh and excessive sentence. Simon
argues that the imposed sentence of 20 years at hard labor, run consecutively
to his other sentences, was a needless imposition of pain and suffering.
The state argues that Simonís 20-year sentence fell within the
statutory guidelines of 5-30 years. The state argues that the sentence was
not constitutionally excessive where Simon had two prior convictions for
drug distribution offenses, showing a history of drug sales and a history of
When a defendant fails to file a motion to reconsider sentence
pursuant to La. C. Cr. P. art. 881.1, the appellate courtís review is limited to
the bare claim that the sentence is constitutionally excessive. State v. Mims,
619 So. 2d 1059 (La. 1993); State v. Boyd, 46,321 (La. App. 2 Cir. 9/21/11),
72 So. 3d 952. Constitutional review turns upon whether the sentence is
illegal, grossly disproportionate to the severity of the offense or shocking to
the sense of justice. State v. Lobato, 603 So. 2d 739 (La. 1992); State v.
Livingston, 39,390 (La. App. 2d Cir. 4/6/05), 899 So. 2d 733; State v. White,
37,815 (La. App. 2 Cir. 12/17/03), 862 So. 2d 1123.
A sentence violates La. Const. art. I, ß 20 if it is grossly out of
proportion to the seriousness of the offense or nothing more than the
purposeless infliction of pain and suffering. State v. Dorthey, 623 So. 2d
1276 (La. 1993). A sentence is grossly disproportionate if, when the crime
and punishment are viewed in light of the harm to society, it shocks the
sense of justice. State v. Weaver, 2001-0467 (La. 01/15/02), 805 So. 2d 166.
The trial court is given wide discretion in the imposition of sentences
within the statutory limits. Such a sentence will not be set aside as excessive
absent a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.
12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La. App. 2 Cir. 12/14/11), 81
So. 3d 228.
La. R.S. 40:966(B)(3), at the time the offense was committed on June
8, 2016, provided that the penalty for possessing marijuana with the intent to
distribute was imprisonment at hard labor for 5-30 years, and a fine of not
more than $50,000.
Courts have upheld sentences for possession of marijuana with intent
to distribute that imposed terms ranging from 10 to 30 years. In State v.
Traylor, 40,627 (La. App. 2 Cir. 3/8/06), 923 So. 2d 947, this Court upheld a
15-year sentence for possession of 161.5 grams of marijuana with intent to
distribute, where the defendant had a significant history of criminal activity
and had four prior felony convictions. In State v. Purvis, 51,215 (La. App. 2
Cir. 4/5/17), 217 So. 3d 620, this Court upheld a 15-year sentence for
possession of 28 grams of marijuana with intent to distribute where the
defendant, although remorseful for his conduct, had prior convictions for
illegal use of a weapon, attempted possession with intent to distribute, and
illegal use of a firearm. See also, State v. Allen, 49,642 (La. App. 2 Cir.
2/26/15), 162 So. 3d 519, writ denied, 2015-0608 (La. 1/25/16), 184 So. 3d
1289, where this Court upheld two 10-year sentences for distribution of
marijuana, run concurrently with each other, but consecutively to the
defendantís prior sentences.
In State v. Brown, 03-581 (La. App. 5 Cir. 11/12/03), 861 So. 2d 644,
writs denied, 2003-3407 (La. 4/2/04), 869 So. 2d 875, and 2004-0049 (La.
4/2/04), 869 So. 2d 877, the defendant received a maximum 30-year
sentence for possession of 1,578 grams of marijuana with intent to distribute
that was to be served concurrently with a mandatory minimum 30-year
sentence for possession of cocaine in excess of 400 grams. Brown had been
convicted of both crimes at the same trial. Upholding the sentence for the
marijuana-based conviction, the Fifth Circuit noted the large amount of
marijuana found, the defendantís prior drug arrests, and a separate drug
possession conviction between the dates of conviction and sentencing.4
The 20-year imposed sentence falls within the statutory guidelines and
is not the maximum sentence. The trial judge considered the circumstances
of the instant crime, where law enforcement officers found over one pound
of marijuana and over $7,000 in cash in Simonís home, and Simon admitted
to his parole officer that he ignored her directive to stop because he knew
there was marijuana in his house. The trial judge also considered Simonís
criminal history, which shows he has at least three prior felony convictions,
two of which were for possession with the intent to distribute, and a history
of violating his parole/probation. The trial judge concluded that Simon had
demonstrated that he had no intention of being rehabilitated despite prior
attempts to afford him that opportunity and leniency in sentencing. Simon
showed no remorse or responsibility for his actions. Given the
circumstances in Simonís case, the 20-year imposed sentence does not shock
the sense of justice and is not constitutionally excessive.
Outcome: For the foregoing reasons, Navarius Simonís conviction and sentence