468 So. 2d 557

STATE of Louisiana v. Sawyer LEWIS.

No. 84-KA-1654.

Supreme Court of Louisiana.

May 14, 1985.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nicholas F. Noriea, Asst. Dist. Atty., for plaintiff-appellee.

Jacques F. Bezou, George E. Mouledoux, Rebecca Sawyer, New Orleans, for defendant-appellant.

*558WATSON, Justice.

Defendant, Sawyer Lewis, is appealing from his conviction for possession of heroin with intent to distribute1 and sentence to life imprisonment without benefit of parole.2 Defendant contends that: (1) the evidence against him should have been suppressed; and (2) the sentence is unconstitutionally disproportionate to his offense.

FACTS

On December 29, 1976, at approximately 6:30 P.M., New Orleans Police Officers John F. Marie, Jr., and Warren Keller went to the Streamline Tavern at 3235 Fern Street in search of an armed robbery suspect, Lincoln Lewis. The block sometimes had “heavy narcotic activity.” (Tr. 311) The area, known as Girt Town, is bounded by Carrollton Avenue, Earhart Boulevard, Washington Avenue and Jefferson David Parkway. One member of a group loitering in front of the bar, later identified as this defendant, Sawyer Lewis, saw the po-1 lice car and ran inside the tavern. The officers followed, although Officer Keller 1 was delayed by having to park the car. Officer Marie observed Sawyer Lewis take a leather jacket from an empty booth, place something in a pocket, discard the jacket and walk away. Officer Keller saw Lewis holding the jacket but did not see him put anything in it. There were no other people nearby. Being in his shirt sleeves, Sawyer Lewis had been conspicuous among the • people outside the tavern in forty degree weather.

Marie found two balloons in the jacket. A pink balloon was closed and knotted. An orange balloon was ripped open at the bottom, revealing pieces of tin foil. Inside the pocket, Marie saw five loose tin foil packets. Also in the jacket were a utility bill, receipt, keys, loose change, and a driver’s license with forty dollars wrapped around it.

Marie, carrying the jacket, walked over to Keller and told him that this was a “962”, the police code for narcotics. Approaching Lewis, the officers identified themselves and took Lewis out to their car. There Marie examined the contents of the tin foil packets which contained a brown powder resembling heroin.

Forty-nine foil packets were in the jacket and the contents tested positive for heroin. Lewis was indicted for possession of heroin with intent to distribute. He was tried by a twelve person jury and found guilty as charged by a ten to two vote. Lewis was sentenced to life imprisonment “without benefit1 of parole”. A new sentencing hearing was granted by the trial court because the possibility of a suspended sentence had not been considered. After hearing testimony on the possibility of rehabilitation, the trial court affirmed the original sentence, determining that defendant is not a heroin addict. Present counsel was appointed and perfected this appeal.

ASSIGNMENT OF ERROR NUMBER ONE

Lewis claims that the trial court erred by admitting into evidence the jacket, balloons, foil packets, utility bill, receipt, driver’s license, money and keys. He argues that these items were illegally seized without probable cause and without a search warrant in violation of the Fourth Amendment of the United States Constitution and Article 1, Section 5, of the Louisiana Constitution of 1974.

At trial, the seized items were admitted into evidence, despite an unspecified objection. No motion to suppress was *559ever filed.3 Failure to file a motion to suppress tangible evidence either before or during trial waives any objection. An unspecified objection does not suffice. State v. Brogdon, 426 So.2d 158 (La., 1983); State v. Williams, 362 So.2d 530 (La., 1978); State v. Keys, 328 So.2d 154 (La., 1976); State v. Lawrence, 260 La. 169, 255 So.2d 729 (1971); State v. Royal, 255 La. 617, 232 So.2d 292 (1970). Lewis is precluded from arguing the unconstitutionality of the search and seizure; any objection was waived by the failure to file a motion to suppress.4

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that under the Eighth Amendment to the United States Constitution and Article 1, Section 20, of the Louisiana Constitution, the life sentence mandated by LSA-R.S. 40:966(B) is unconstitutionally disproportionate to his crime.

Relying on Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), defendant argues that distribution of narcotics is not as serious as the violent crimes which mandate a life sentence and the punishment is more severe than that provided in other jurisdictions for equivalent offenses.

Helm, supra, vacated the life sentence imposed under a South Dakota recidivist statute which specifically excluded the possibility of parole. That defendant, who had six prior convictions for nonviolent felonies, received the life sentence for issuing a one hundred dollar “no account” check. Helm held that: “a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional.” 463 U.S. at-, 103 S.Ct. at 3009, 3010, 77 L.Ed.2d at 649. A proportionality analysis should be guided by objective criteria, including: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.5

The gravity of this offense was discussed in State v. Mallery:6

“It is no defense to this prosecution that distribution of drugs is not a violent crime and consequently punishment for this offense should not be on a par with second-degree murder and aggravated kidnapping. Assuming the punishments are equal, traffic in narcotics is an insidious crime which, although not necessarily violent, is surely as grave. Indeed, the effect upon society of drug traffic is pernicious and far-reaching. For each transaction in drugs breeds another and in the case of heroin the degeneracy of the victim is virtually irreversible. Com*560pared to the effect of drug traffic on society, isolated violent crimes may well be considered the lesser of the two evils.” 364 So.2d at 1285.

The legislature correctly classifies heroin drug trafficking as a serious crime because of its epidemic proportions and the compounding damage to society. State v. Terrebonne, 364 So.2d 1290 (La., 1978).

This mandatory life sentence and that in the habitual offender statute, LSA-R.S. 15:529.1,7 are the only ones imposed in Louisiana for non-violent crimes. A life sentence under a habitual offender statute was upheld in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) where parole was possible after twelve years.

Distribution of narcotics is a graded offense in which harsher penalties are imposed for the more serious drugs. LSA-R.S. 40:961, et seq. Distribution of heroin is a serious crime with devastating consequences both to addicts and to society. A mandatory life sentence is not disproportionate to any offense involving heroin, particularly where, as here, the offender does not have the excuse of addiction.

A comparison to the penalties in other states for the same crime was conducted in State v. Terrebonne:

“Life imprisonment is the maximum penalty for the distribution of narcotics in a substantial number of states. See, e.g., Arizona (Ariz.Rev.Stat. §§ 36-1002.-02(A)-03(A) 1974 and Supp.1977); Idaho (Idaho Code § 37-2732(a)(1)(A) (1977); Missouri (Mo.Ann.Stat. § 195-200(1), (4) (Vernon Supp.1978); Montana (Mont.Rev.Codes Ann. § 54-132 (Supp.1977); Rhode Island (R.I.Gen.Laws § 21-28-4.-01(A)(1) (Supp.1977), and Texas (Tex.Rev. Civ.Stat.Ann. art. 4476-15, § 4.03 (Vernon 1976).” 364 So.2d at 1292.

The trial court could have imposed a suspended sentence rather than life imprisonment. On re-sentencing, the trial- court considered a suspended sentence, heard testimony on the likelihood of rehabilitation, and concluded it was not feasible because the defendant was “not a drug addict, but indeed a seller.” 8 (Tr. 337)

The legislature did not exceed its broad authority in providing a life sentence for the serious crime involved and the trial court did not abuse its discretion in not granting a suspended sentence. At the time of this offense, LSA-R.S. 40:966(B) provided that one convicted of possession with intent to distribute heroin “shall be sentenced to life imprisonment at hard labor.” 9 Prior to a 1977 amendment,10 the trial court did not have authority to give a mandatory life sentence without benefit of probation. State v. Domino, 360 So.2d 194 (La.,1978). State v. Wilson, 362 So.2d 536 (La., 1978). At the time of the crime, a life sentence “without benefit of parole” was illegal.11

For the foregoing reasons, the conviction is affirmed. The sentence is amended to delete the words “without benefit of parole,” and, as amended, is affirmed.

AMENDED AND AFFIRMED.

DENNIS, J.,

concurs in the result as to affirming the conviction and sentence but dissents from the court’s refusal to grant an evidentiary hearing on the ineffective assistance of counsel claim.

CALOGERO, J., dissents and assigns reasons.

*561CALOGERO, Justice,

dissenting.

There is merit to Assignment of Error No. One. The evidence seized in the bar was illegally obtained. There was no probable cause for the warrantless search. At trial, counsel objected to the admission. The objection was overruled.

The majority disposes of this assignment simply by stating that no motion to suppress was filed as required by La.C.Cr.P. art. 703A. In the normal appeal, that disposition would be appropriate. Normally, on appellate review in a situation such as this, a defendant will be told that he can raise ineffective assistance of counsel in a post conviction application. But this is not a normal situation. It is unlikely defendant will get any attention hereafter on that asserted constitutional error. This is for the reason that, unlike any other case in this Court in recent memory, an application complaining of the constitutional violation of ineffective assistance of counsel (for the asserted reason that defendant’s attorney, with a good motion to suppress, neglected to file it) was filed and disposed of prior to this appellate review of the conviction in the very same case. In State v. Lewis, 352 So.2d 236 (La.1977), defendant was denied relief with Justices Tate and Dennis dissenting.1 In my view, this earlier resolution by writ denial did not reflect the careful evaluation and study which was warranted by this error.

State v. Lewis
468 So. 2d 557

Case Details

Name
State v. Lewis
Decision Date
May 14, 1985
Citations

468 So. 2d 557

Jurisdiction
Louisiana

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