29,369 La.App. 2 Cir. 5/7/97, State v. Keys

• Decision Date: 07 May 1997
• Parties: 29,369 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1107

694 So.2d 1107

29,369 La.App. 2 Cir. 5/7/97

STATE of Louisiana, Plaintiff-Appellee, v. Terry KEYS, Defendant-Appellant

Nos. 29369-KA, 29370-KA.

Court of Appeal of Louisiana, Second Circuit.

May 7, 1997.

Chris L. Bowman, Jonesboro, for Defendant-Appellant.

Richard Ieyoub, Attorney General, Walter E. May, Jr., District Attorney, Douglas L. Stokes, Assistant District Attorney General, for Plaintiff-Appellee.

Before MARVIN, C.J., and NORRIS and BROWN, JJ.

NORRIS, Judge.

Terry Keys was charged by bill of information with possession of cocaine, a Schedule II controlled dangerous substance, in violation of La.R.S. 40:967 C. He was later billed and adjudicated a fourth felony offender, R.S. 15:529.1 A(1)(c), and sentenced to the mandatory life in prison without benefit of parole, probation or suspension of sentence. Keys now appeals his conviction, adjudication and sentence. For the reasons expressed, we affirm.

Factual background

On November 22, 1995 Officers Doug Worley and Jedd Essmeier of the Jonesboro Police Department responded to a domestic disturbance call at Irma Gray's house in Jonesboro. The defendant and his wife, Sylvia Thompson, were involved in a fight. Officer Worley arrived first and learned from Mrs. Gray that Keys and Thompson were in a room in the back of the house.

Officer Worley walked toward the room and stood outside the door, some three feet from Keys, and asked the couple about their dispute. Officer Worley testified that Keys, who appeared fidgety, reached into his back pocket, then leaned to his right and set a brown medicine bottle on a nearby table. Officer Worley moved to his own left to observe the defendant's movements. Keys then turned and walked past Officer Worley. The officer picked up the bottle, opened it, and observed what he believed to be crack cocaine inside. He closed the bottle and placed it in his pocket. He testified that the prescription label on the medicine bottle bore the name "Cleveland Brown"; however, Officer Worley knew of no one by that name at Ms. Gray's house on that night. Chemical analysis confirmed that the bottle contained cocaine.

Officer Worley walked outside where Officer Essmeier was speaking with Keys, who was breathing hard, complaining of chest pains and had a high pulse rate. Keys reported that Ms. Thompson had hit him and that his ribs were hurting, but he did not want to have her arrested. Officer Worley placed Keys under arrest for disturbing the peace, advised him of his Miranda rights, and transported him to the Jonesboro Police Department.

At the police station, Officer Worley entered the room where Keys was seated and removed the bottle from his pocket, intending to inform Keys of the cocaine charge. Before the officer said anything, Keys denied owning the bottle and stated that he had never seen it.

On cross examination, Officer Worley admitted that his report of the incident did not state he saw the bottle emerge from Keys's pocket. Instead, the report only stated that he saw Keys's hand in his pocket and then saw him set the bottle on the table. Officer Worley conceded that this version correctly depicted the incident as he saw it. Further, Officer Worley testified that when he effected the initial arrest (disturbing the peace), he did not mention the cocaine charge to Keys.

Officer Essmeier testified that he saw Officer Worley asking Keys and Ms. Thompson about the disturbance; he also saw Officer Worley lean towards the doorway to the back room, apparently attempting to observe the defendant when he removed the pill bottle from his pocket. Essmeier saw the pill bottle when Worley arrested Keys.

Mrs. Gray testified that she had told her son to call the police because of the argument between Keys and Ms. Thompson. She restrained Keys to prevent him from attacking his wife, but stated that he could have left had he so desired. Mrs. Gray stated that she never noticed a pill bottle in his pocket and had never seen it until the night before trial. Although the State asked Mrs. Gray if anyone named Cleveland Brown lived in her home, the transcript reflects her answer was inaudible.

Testifying for the defense, Sylvia Thompson stated that on the night in question she never saw Keys take anything out of his pocket and set it on the table. Further, she claimed she never saw Officer Worley pick anything up from the table. Ms. Thompson testified that between the time the police were called and the time they arrived, Keys could have left the house. She recalled Officer Worley saying at the time of the arrest that Keys would be "right back," and that his aunt did not have to go to the jail to get him.

Ms. Thompson also testified that Officer Worley "told" her she had observed Keys put something on the table; however, Ms. Thompson replied that she did not see anything. She also testified that Officer Worley called her later that day, telling her that the case against Keys was otherwise weak, and asking her to say she had seen defendant put the pill bottle on the table. Ms. Thompson testified that she declined to do so. On cross examination, the State attempted to undermine Ms. Thompson's credibility by showing that if Keys went to prison, she would likely be unable to collect child support from him on behalf of their child. Further, while Ms. Thompson denied she ever saw that pill bottle until a police officer showed it to her after Keys was arrested, she admitted that she knew of no one named Cleveland Brown.

Also testifying for the defense was Helen Spivey, Keys's aunt, who lived next door to Mrs. Gray. Ms. Spivey testified that she saw police search Keys in the front yard and then arrest him; one of the officers informed her they were taking him to the police station for disturbing the peace. Later, Keys called her from jail and claimed that the officers were trying to frame him on drug charges. Ms. Spivey testified that at the police station one officer showed her the bottle containing the cocaine and told her that he retrieved it from a table, but another officer told her. "I ain't seen him [Keys] with nothing, there ain't no need of me lying, he said he didn't see Terry with no kind of dope." R. p. 205. On cross examination, however, Ms. Spivey said that the officer did not use the word "dope," but actually told her, "I ain't seen him with nothing." R. p. 206.

Ms. Spivey further testified that the "tall" officer (presumably Officer Worley) told her that the cocaine belonged to Keys, and he had got it off the table. Ms. Spivey testified that this officer told her he did not know who the drugs belonged to; however, on cross examination she could not "really recall" this statement. R. pp. 211-12.

Officer Worley testified in rebuttal that he retrieved the bottle from a table in Mrs. Gray's house after seeing Keys place it there; he denied "planting" evidence. He admitted asking Sylvia Thompson whether she saw Keys put the bottle on the table. He also acknowledged telling Ms. Thompson her statement would strengthen the case against defendant, but denied ever asking her to lie. He testified that Ms. Thompson continuously maintained, "You saw it, I didn't see anything." R. p. 214.

The six-member jury found Keys guilty as charged, and the District Court sentenced him to five years at hard labor and a fine. However, the State also charged him as a recidivist; after a hearing, the District Court adjudicated him a fourth felony offender. The trial court vacated the prior sentence and imposed the mandatory sentence of life imprisonment without possibility of parole, probation or suspension of sentence, pursuant to La.R.S. 15:529.1 A(1)(c)(ii).

Discussion: Sufficiency of the evidence

By his second assignment of error Keys urges the evidence was insufficient to support his conviction. The relevant inquiry when reviewing a conviction for the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime 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. Famous, 27,593 (La.App. 2d Cir. 1/24/96), 667 So.2d 1209.

A determination of the weight of evidence is a question of fact which rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. State v. Silman, 95-0154 (La. 11/27/95), 663 So.2d 27. The sufficiency of evidence review does not allow the reviewing court to second guess the fact finder's rational credibility determinations; however, if the evidence is such that reasonable jurors must have a reasonable doubt, then sufficiency of evidence review does not permit jurors to speculate. State v. Harris, 94-0970 (La. 12/8/94), 647 So.2d 337.

Possession of a controlled dangerous substance may be established by showing that the defendant exercised either actual or constructive possession of the substance. State v. Lias, 28,091 (La.App. 2d Cir. 5/8/96), 674 So.2d 1044. "Actual possession" means having an object in one's possession or on one's person in such a way as to have direct physical contact with and control of the object. State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied 575 So.2d 365 (1991).

The jury's finding of guilt in this case largely turned on a credibility evaluation of Officer Worley. At trial, Keys presented testimony attempting to show that this officer framed him by planting evidence, namely the bottle with cocaine. The jury members obviously rejected this theory, and the finding is within their province as trier of fact.

Nevertheless, in brief Keys questions the sufficiency of the evidence to prove the possession element of the crime, contending that Officer Worley...