STATE OF LOUISIANA V. TROY L. RANDOLPH

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Case Number: 2016-KA-0892

Judge: Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney:

Leon A. Cannizzaro, Jr.
DISTRICT ATTORNEY
Scott Vincent
ASSISTANT DISTRICT ATTORNEY
Christopher J. Ponoroff
ASSISTANT DISTRICT ATTORNEY

Defendant's Attorney:

Holli Herrle-Castillo
LOUISIANA APPELLATE PROJECT

Description: Troy L. Randolph (“Defendant”) appeals his convictions for possession with
the intent to distribute marijuana,1 possession with the intent to distribute heroin,2
possession with the intent to distribute cocaine,3 and possession of a firearm by a
convicted felon.4 Defendant also appeals his sentence for possession with the intent
to distribute heroin as indeterminate. Finding that the evidence is sufficient to
support his convictions, and no error below merits reversal, we affirm Defendant‟s
convictions. Finding that his sentence of ten years, with “at least” five years to be
served without the benefit of probation, parole, or suspension of sentence is
indeterminate, we vacate the sentence, and remand this case to the district court so
that a determinate sentence may be rendered.
Detective David Biondolillo, (“Det. Biondolillo”) while working with the
Drug Enforcement Agency multi-jurisdictional major crimes task force, observed

1 La. R.S. 40:966(A)(1) (count one of the Bill of Information).

2 Id. (count two of the Bill of Information).

3 La. R.S. 40:967(A)(1) (count three of the Bill of Information).

4 La. R.S. 14:95.1 (count four of the Bill of Information).




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Defendant exit the Residence5 with another person. During a pre-trial hearing, Det.
Biondolillo identified this other person as a confidential informant (“C.I.”) who, at
the time, was making a controlled buy from Defendant. Det. Biondolillo testified
that the C.I. entered Defendant‟s Residence with no drugs on his person and exited
the Residence with cocaine. Based on this transaction, Det. Biondolillo received a
search warrant for the Residence. The district court ruled that no mention of the
C.I. would be made to the jury at trial.
The search warrant was executed on February 10, 2014. Upon execution,
police found large quantities of marijuana, powder cocaine, crack cocaine, and
heroin, some of which had been individually packaged in small bags and hidden.
Only one of the two bedrooms in the Residence was furnished. The other was
mostly empty except for a chest-of-drawers that contained several bags of drugs. In
the furnished bedroom, officers found a dresser with heroin, needles and a spoon, a
shoebox full of marijuana, and a loaded shotgun leaning against the wall. Under
the bed, the officers found a bag of crack cocaine and $300 cash in a hole inside
the bedpost, as well as mail and an arrest register with Defendant‟s name on it.
There was also a scale containing white powder residue and cooking equipment
covered in white powder residue in the kitchen.
During the execution of the search warrant, officers found one person inside
the Residence at the time, a woman asleep in the bed in the furnished bedroom.

5 The address where the 2014 search warrant was executed is referred to throughout this opinion as “the Residence.”



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The woman was arrested on the scene after admitting she had been using heroin at
the Residence. She told the officers that Defendant usually kept some heroin in the
bed-side table for his guests.
On April 22, 2014, the State of Louisiana (“State”) charged Defendant with
possession with the intent to distribute marijuana, possession with the intent to
distribute heroin, felon in possession of a firearm, and possession with the intent to
distribute cocaine. At trial, the woman arrested upon the execution of the search
warrant testified that when she was arrested, she had known Defendant for at least
a month and had gotten heroin from him almost every day. She testified that
Defendant lived in that house and slept in the bedroom where she was found. She
said she had seen Defendant deal drugs out of the Residence, out of both
bedrooms, almost every day, and that she had witnessed Defendant “cook” crack
cocaine in the kitchen. The woman also testified that she knew Defendant‟s
brother. The woman said that Defendant‟s brother did not live at the Residence and
she had never seen Defendant‟s brother sell drugs there.
Another individual, a Louisiana attorney, testified that he bought cocaine
from Defendant on multiple occasions during a four-month span. He also identified
several text messages found on a cellular telephone that Defendant possessed when
arrested. The attorney admitted that he sent the text messages to Defendant as part
of a transaction to buy large amounts of cocaine.6

6 Approximately one month after Defendant‟s arrest, the attorney was arrested in Jefferson Parish for possession of cocaine. During trial, he was in a diversion program. He testified that the State had given him immunity in this case in exchange for his testimony.


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The State also introduced evidence of Defendant‟s other crimes. In 2009,
Defendant was arrested and charged with possession of a firearm by a convicted
felon, possession with the intent to distribute cocaine, possession with the intent to
distribute morphine, distribution of a Schedule III controlled dangerous substance,
possession with the intent to distribute alprazolam, and possession with the intent
to distribute marijuana. Defendant pled guilty to all of the 2009 charges. Detective
Humbles (“Det. Humbles”) testified that he executed a search warrant at the
Residence7 on June 24, 2009. He found several types of prescription pills,8
marijuana, crack cocaine, powder cocaine, heroin, a scale and mirror with residue
on them, as well as a revolver and a rifle. After looking up Defendant‟s name, Det.
Humbles discovered Defendant had a prior felony conviction that barred him from
possessing a firearm.9 Upon execution of the search warrant, Defendant and his
then girlfriend were arrested. Defendant and the girlfriend admitted that they lived
at the Residence and shared Defendant‟s bedroom.10
Det. Humbles also issued an arrest warrant for Defendant‟s brother, who
also lived at the Residence at that time. Det. Humbles testified that he found four
pounds of marijuana located under Defendant‟s brother‟s bed but all of the other
drugs, paraphernalia, and guns were found in Defendant‟s bedroom. He also

7 The 2009 search warrant was executed upon the same location as the 2014 search warrant.

8 Det. Humbles testified that he found Suboxone, Xanax, and morphine.

9 See La. R.S. 14:95.1.

10 Because the girlfriend admitted she shared the bedroom with Defendant, she was charged with everything found inside the bedroom along with Defendant.


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discovered energy bills in Defendant‟s brother‟s name and water bills in
Defendant‟s name for the Residence.

After the trial, Defendant was found guilty as charged on all counts. On
December 15, 2015, the district court sentenced Defendant to ten years at hard
labor on counts one, two, and four, to run concurrently, and ten years at hard labor
without the benefit of probation, parole or suspension of sentence on count three,
to run concurrently with the other sentences. On May 2, 2016, the district court
amended Defendant‟s sentence on count two, possession with the intent to
distribute heroin, to provide that “at least” five of the ten years must be served
without the benefit of probation, parole or suspension of sentence. On May 4,
2016, the district court amended the sentence on count four to provide that the first
two years must be served without the benefit of probation, parole or suspension of
sentence.11
Defendant now timely appeals these convictions and his sentence for
possession with the intent to distribute heroin.
Assignments of Error
I. Admission of Other Crimes Evidence
In his first assignment of error, Defendant argues that the district court erred
in partially granting12 the State‟s motion to admit evidence of Defendant‟s previous

11 After sentencing, the State filed a multiple offender bill. On July 6, 2016, the district court found Defendant not guilty of the multiple offender bill on the basis that the State failed to prove the prior underlying convictions. The State subsequently filed a new multiple offender bill. A hearing on that multiple offender bill had not taken place yet upon the lodging of this appeal.

12 The district court ruled that the State could use the other crimes evidence to show lack of mistake, plan, and preparation, but could not use the other crimes evidence to prove motive or identity.




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convictions for possession of a firearm by a convicted felon, possession with the
intent to distribute cocaine, possession with the intent to distribute morphine,
distribution of a Schedule III controlled dangerous substance,13 possession with the
intent to distribute alprazolam, and possession with the intent to distribute
marijuana (together, the “2009 case”).14 Defendant argues that the other crimes
evidence admitted from the 2009 case was more prejudicial than probative15 and
should have been ruled inadmissible. Specifically, Defendant argues that because
the 2009 case includes possession with the intent to distribute several prescription
medications, this “makes [Defendant] look worse than just an illegal cocaine,
heroin, or marijuana dealer” as “there are different implications involved in the
illegal dealing of prescription medication.” Further, Defendant argues that because
two firearms were found in the 2009 case and only one firearm was found in the
case sub judice, the jury may have been inclined to draw inferences about him that
they would not have otherwise drawn.
La. C.E. art. 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity,
13 This substance is identified in the record as Suboxone, a brand name for a prescription medication containing a combination of buprenorphine, an opioid, and naloxone, which blocks the effects of opioids, such as pain relief and euphoria. Suboxone is used in the treatment of narcotic addiction. “Suboxone” (April 3, 2017), available at https://www.drugs.com/suboxone.html. See La. C.E. art. 201 (B)(2). The word “Suboxone” does not appear in the Uniform Controlled Dangerous Substance Law, see La. R.S. 40:964, et. seq. However, buprenorphine is classified as a Schedule III controlled dangerous substance and naloxone is classified as a Schedule II controlled dangerous substance. See La. R.S. 40:964. La. R.S. 40:964 Schedule III(D)(2)(a) provides that any mixture containing buprenorphine is a Schedule III drug.

14 These motions are often referred to as Prieur motions, in reference to Louisiana‟s seminal case on the admission of other crimes evidence, State v. Prieur. 277 So.2d 126 (La. 1973).

15 See La. C.E. art. 403.



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intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The district court has broad discretion in weighing the probative versus prejudicial
value of evidence under La. C.E. art. 403, and its ruling on the admissibility of
evidence pursuant to La. C.E. art. 404 (B)(1) will not be disturbed absent an abuse
of discretion. State v. Coleman, 2014-0402, p. 39 (La. 2/26/16), 188 So.3d 174,
205.
In order for other crimes to be admissible as evidence of intent, the
prosecution must establish three prerequisites: “(1) the prior acts must be similar;
(2) there must be a real and genuine contested issue of intent at trial; and (3) the
probative value of the evidence must outweigh its prejudicial effect.” State v.
Blank, 2004–0204, p. 41 (La. 4/11/07), 955 So.2d 90, 124; see also State v.
Lawrence, 2009-1637, p. 9 (La. App. 4 Cir. 8/25/10), 47 So.3d 1003, 1009. After
the State provided Defendant with notice it was going to use evidence of his prior
convictions, the district court held a hearing16 to determine its admissibility. In

16 See State v. Taylor, 2016-1124, p. 5, 2016 WL 7030750 at **9 (La. 12/1/16), ---So.3d ---. In Taylor, the Louisiana Supreme Court noted that “[t]he jurisprudence has at times painted a murky picture concerning the burden of proof relative to introduction of other crimes evidence pursuant to La. C.E. art. 404(B),” in reference to the fact that some cases required that the State prove by “clear and convincing” evidence that the defendant was the person who committed the other crimes, whereas others required a lower standard. Id. The Taylor court concluded that the State does not have to prove by “clear and convincing” evidence that the defendant committed the other crimes, but rather, “the state need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act.” Id. at 2016-1124, p. 6, 2016 WL 7030750 at **10 (emphasis in original). However, the Taylor court recognized that a pretrial evidentiary hearing is required to determine the admissibility of other crimes evidence. Id. at 2016-1124, p. 6, 2016 WL 7030750 at **11. Although the evidentiary burden on the State may have been unclear at the time of Defendant‟s hearing, we note that the district court held the required hearing, and that Defendant challenges the prejudicial nature and relevance of the evidence in question, not the sufficiency of the evidence the State presented at that hearing to prove that he in fact committed the other crimes.


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ruling after that hearing, the district court noted that the statutes for possession
with the intent to distribute narcotics require the State to prove specific intent.17
See La. R.S. 40:966(A)(1) (regarding Schedule I substances, such as heroin and
marijuana); La. R.S. 40:967(A)(1)(regarding Schedule II substances, such as
cocaine). See also State v. Sykes, 2004-0947, p. 7 (La. App. 4 Cir. 3/9/05), 900
So.2d 156, 162 (requiring specific intent in a possession with the intent to
distribute case). Defendant argues that his intent is not at issue as he had not
asserted that he possessed the drugs by mistake. However, the State must prove
every essential element of an offense. State v. Berniard, 2014-0341, p. 11 (La.
App. 4 Cir. 3/4/15), 163 So.3d 71, 80. Thus, because specific intent is an element
of the charged crimes, when Defendant pled not guilty, he necessarily put his intent
at issue. The district court did not abuse its discretion in finding the other crimes
evidence from the 2009 case “relevant to show that the crimes were not committed
inadvertently or without guilty knowledge,” and should be admitted to show lack
of mistake.
The district court also allowed the introduction of evidence of the prior
crimes to show plan and preparation. The district court based its decision on
evidence presented at a pretrial hearing that Defendant conducted business with
confidential informants involving the sale of narcotics in both cases, which
appeared to be “quite similar.” The district court also found that the information
was highly probative. The similarities between the case sub judice and the 2009



17 La. R.S. 14:10 reads, in pertinent part, “[s]pecific 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.”



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case evident from the record indicate that the district court did not abuse its
discretion in reaching this conclusion.18
This assignment of error lacks merit.
II. Hearsay Ruling
Next, Defendant argues that the district court erred by denying his motion in
limine to exclude hearsay information provided by the C.I. In so arguing,
Defendant alleges that the district court first denied his motion in limine to exclude
any evidence referring to information obtained by the non-testifying C.I. and then
changed its ruling on two subsequent occasions during trial. The record does not
support this assertion.
On the first day of trial before jury selection began, the district court initially
denied Defendant‟s motion in limine, ruling that any evidence alluding to the
confidential informant would be admissible as res gestae. See La. C.E. 801(D)(4).
The district court immediately revised its ruling to exclude any direct reference to
the C.I. The district court further ruled that Det. Biondolillio could testify to what
he learned during his investigation as long as he did not attribute the information
directly to the C.I. Defendant objected, arguing that the district court would be
admitting hearsay, which would warrant a mistrial.
The following morning before the trial resumed, both the State and
Defendant requested clarification of the court‟s motion in limine ruling. The
district court repeated that the detectives could refer to the information they

18 Even if the district court had erred in allowing the admission of prior crimes evidence, it would be subject to a harmless error analysis. State v. Garcia, 2009-1578, p. 41 (La. 11/16/12), 108 So.3d 1, 59. In this case, in light of both the attorney and the woman‟s testimony that Defendant possessed and distributed narcotics to them from the Residence, as well as Det. Biondolillo‟s testimony that all of the individually packaged narcotics and shotgun were found inside the Residence,the admission of the prior crimes evidence, if erroneous, was harmless.



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received through the course of their investigations but no party or witness could
mention the C.I. The court also advised Defendant not to ask any questions that
would elicit a response referencing the C.I. that would warrant a mistrial if elicited
by the State. Defense counsel replied he would “not open the door.”
Det. Biondolillo testified that while executing the search warrant, the
officers waited only a few seconds to breach the door after knocking and
announcing their presence because information they had received led them to
believe there were guns inside the Residence. Defendant objected to this testimony
as hearsay, and, after a bench conference, the district court sustained the objection.
During cross-examination, defense counsel asked Det. Biondolillo why he
did not charge the woman arrested at the Residence with possession of the crack
found under the bed on which she was sleeping. Det. Biondolillo replied that he
did not believe it belonged to her. Defense counsel then asked, “You did not
believe it was hers?” and Det. Biondolillo responded that “[a]ll the information I
had up to that point led to [Defendant] being the person who lives at that house,
being the person who was selling drugs from that house, including the
investigation that I conducted that led to me getting a search warrant.
After the jury vacated the courtroom for a lunch break, Defendant again
objected on the record to the statement Det. Biondolillo made on direct
examination as hearsay, which the court overruled.19 Defendant also requested a
mistrial, which the district court denied. Defendant then objected to Det.
Biondolillo‟s statement under cross-examination as hearsay. The State responded
that the testimony had been elicited by Defendant‟s own question, knowing what

19 We note that, as stated supra, the district court had sustained the objection during the testimony.


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the answer would be, which the district court specifically advised defense counsel
against. Again, the district court overruled the objection and denied Defendant‟s
request for a mistrial.
As stated supra, a district court‟s ruling on the admissibility of evidence
should not be overturned absent an abuse of discretion. See State v. Brown, 97
2260, p. 8 (La. App. 4 Cir. 10/6/99), 746 So.2d 643, 648 (applying the abuse of
discretion standard to a district court‟s ruling on the admissibility of hearsay).
Regardless of any confusion at the district court as to the ruling on the motion in
limine, the district court did not abuse its discretion in admitting the testimony.
Hearsay is a statement, other than one made by the declarant while testifying at the
present trial or hearing, offered in evidence to prove the truth of the matter
asserted. La. C.E. art. 801(C). Hearsay evidence is generally not admissible, unless
provided for by the Code of Evidence or other legislation. La. C.E. art. 802. There
are some exceptions to the general hearsay prohibition. For example:
The testimony of a police officer may encompass information provided by another individual without constituting hearsay, if it is offered to explain the course of the police investigation and the steps leading to the defendant's arrest. However, this exception does not allow the state carte blanche authority to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule.

State v. Legendre, 2005-1469, p. 11 (La. App. 4 Cir. 9/27/06), 942 So.2d 45, 52–
53. (internal citations omitted). “Generally, an explanation of the officer‟s actions
should never be an acceptable basis upon which to admit an out-of-court
declaration when the so-called „explanation‟ involves a direct assertion of criminal
activity against the accused.” State v. Hearold, 603 So.2d 731, 737 (La. 1992).
“Absent some unique circumstances in which the explanation of purpose is


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probative evidence of a contested fact, such hearsay evidence should not be
admitted under an „explanatory‟ exception.” Id.
In the case sub judice, Det. Biondolillo‟s statement that based on the
information he received, he believed there were guns in the Residence, was
provided to explain why the police used force to breach the door of the Residence
when executing the search warrant. Det. Biondolillo did not attribute the
information to a third party nor was the substance of the statement a direct
assertion of criminal activity against the accused. As to Det. Biondolillo‟s
statement made on cross-examination, there is no indication that he was referring
to any statements made to him by a third party. Additionally, defense counsel
specifically asked the question in order for the detective to explain his actions. The
Louisiana Supreme Court has held that the State cannot be charged with testimony
elicited by defense counsel and that defense counsel cannot claim reversible error
on the basis of evidence he elicited. State v. Kimble, 375 So.2d 924, 928 (La.
1979); State v. Tribbet, 415 So.2d 182, 184 (La. 1982); State v. Augustine, 2012
1759, p. 9 (La. App. 4 Cir. 9/18/13), 125 So.3d 1203, 1208.
Moreover, even if the district court erred, admission of hearsay is subject to
a harmless error analysis. State v. Wille, 559 So.2d 1321, 1332 (La.1990). On
review, factors to consider include the importance of the witness‟ testimony,
whether the testimony was cumulative, the presence or absence of corroborating
evidence, the extent of cross-examination permitted, and overall strength of the
state‟s case. Id. In the case sub judice, Det. Biondolillo testified that upon
execution of the search warrant, officers discovered a shotgun inside the
Residence. Under these circumstances, any error occurring by the admission of


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Det. Biondolillo‟s reference to information he learned from a non-testifying party
was rendered harmless by the discovery of the shotgun.
This assignment of error lacks merit.
III. Indeterminate Sentence
Lastly, Defendant asserts that the district court imposed an indeterminate
sentence on count two of the bill of information, possession with the intent to
distribute heroin. La. C.Cr.P. 879 requires that a sentencing court impose a
determinate sentence. During the sentencing hearing on May 2, 2016, the district
court amended the sentence on count two. Originally, the sentence required that
“the first” five years of the ten year sentence be served without the benefit of
probation, parole, or suspension of sentence. Upon amendment, the words “the
first” were replaced with “at least.”
The statute regarding the penalties for possession with the intent to distribute
heroin provides that upon conviction, a defendant shall be sentenced to
“imprisonment at hard labor for not less than five nor more than fifty years, at least
five years of which shall be served without benefit of probation or suspension of
sentence…” La. R.S. 40:966(B)(1) (2014). (emphasis added). The use of the
phrase “at least” in the statute is meant to provide the sentencing judge with some
discretion in fixing the term which must be served without the benefit of parole,
probation or suspension of sentence, as long as it does not fall below the required
minimum. State v. Dominick, 2013-0121, p. 6 (La. App. 4 Cir. 11/20/13), 129
So.3d 782, 787.20 However, failure of the district court to specify the number of

20 See also, State v. Matthews, 650 So.2d 1170 (La. 1995) (wherein the Louisiana Supreme Court vacated the defendant‟s sentence of forty years at hard labor, “at least” ten of which must be served without parole eligibility, as being indeterminate and remanded the case to the district


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years of a sentence which must be served without the benefit of parole, probation,
or suspension of sentence, is an error patent which is neither self-correcting, nor
correctable on appeal. Id. Thus, the case must be remanded to the district court for
resentencing.

Outcome: