State v. Fisher, 2019 KA 0669

• Decision Date: 15 November 2019
• Docket Number: 2019 KA 0669
• Parties: STATE OF LOUISIANA v. WALTER PERELL FISHER, JR.
• Court: Court of Appeal of Louisiana — District of US

STATE OF LOUISIANA v. WALTER PERELL FISHER, JR.

2019 KA 0669

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

November 15, 2019

NOT DESIGNATED FOR PUBLICATION

Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana

Docket Number 589750-1

Honorable Martin E. Coady, Judge Presiding

Warren L. Montgomery

Matthew Caplan

J. Bryant Clark, Jr.

Covington, LA

Counsel for Appellee,

State of Louisiana

Cynthia K. Meyer

New Orleans, LA

Counsel for Defendant/Appellant,

Walter Perell Fisher

BEFORE: WHIPPLE, C.J., GUIDRY, AND CRAIN, JJ.

WHIPPLE, C.J.

The defendant, Walter Perell¹ Fisher, was charged by bill of information² with possession of a controlled dangerous substance (methamphetamine) as set forth in LSA-R.S. 40:964 Schedule II(C)(2), a violation of LSA-R.S. 40:967(C)(count one), and possession of a legend drug³(promethazine) without a prescription or order, a violation of LSA-R.S. 40:1060.13(count two).⁴He pled not guilty on both counts.After a trial by jury, he was found guilty as charged on both counts.The trial court originally sentenced the defendant to two years imprisonment at hard labor on count one and five years imprisonment at hard labor on count two, to run concurrently.

The State subsequently filed a habitual offender bill of information to enhance the sentences on both counts.The defendant pled not guilty to the multiple offender bill on arraignment.After a hearing, the trial court adjudicated the defendant a third-felony habitual offender, vacated the original sentences, and resentenced the defendant to four years imprisonment at hard labor on count oneand ten years imprisonment at hard labor on count two.⁵

The trial court further ordered that the sentences be served without the benefit of probation or suspension of sentence and that they run consecutively.⁶The trial court denied a motion to reconsider sentence filed by the defendant.

The defendant now appeals, raising five assignments of error, challenging: (1) the sufficiency of the evidence, (2) the admission at trial of his pretrial interview, (3) the propriety of portions of the State's closing arguments, (4)the trial court's denial of the jury's request to view evidence during deliberations, and (5) the constitutionality of the sentences.For the following reasons, we affirm the defendant's convictions, habitual offender adjudication, and sentences.

STATEMENT OF FACTS

On May 1, 2017, Agent Steve Everly of the Division of Probation and Parole of the Louisiana Department of Public Safety and Corrections was informed by his supervisor of drug activity at 3727 Brookwood Drive in Slidell, the residence of a parolee, Richard Dantin, and was instructed to perform a residence check.Agent Everly contacted detectives of the Narcotics Task Force, met them at the Slidell Police Department(SPD), briefed them on the information received from his supervisor, and made arrangements for the residence check.Upon their arrival, Agent Everly knocked on the front door, asked for Dantin, and was told that Dantin was on the back porch.Agent Everly walked to the back porch, where he heard two subjects, one identified as Dantin, apparently arguing over a drugtransaction.⁷After Agent Everly announced his presence and asked Dantin if he had any weapons on his person, Dantin removed a vial of methamphetamine, a pipe, and a lighter from his right pocket and handed them to Agent Everly.Dantin was then handcuffed and the residence was secured, pending the acquisition of a search warrant.

Detective David McNeese of the Narcotics Task Force and SPD Officer Charles Esque participated in the execution of the search warrant.The detectives learned that the residence was also occupied by Dantin's fiancee, Kristie Smith; the defendant; and the defendant's girlfriend, Samantha Irvin.Detective McNeese searched the bedroom that purportedly belonged to the defendant and Irvin.In the pocket of a black New Orleans Saints jacket hanging in the closet, along with other male and female clothing, he located a small, red container that contained suspected methamphetamine and a prescription bottle made out to Irvin.Detective McNeese also located in the bedroom a white pill (suspected promethazine) in a black tray on the nightstand, a marijuana grinder, and a digital scale.⁸

At the time of the officer's arrival, the defendant was in the bathroom taking a bath.Dantin was arrested for possession of methamphetamine, drug paraphernalia, and other items located in the common areas of the residence.The defendant and Irvin were arrested for possession of the methamphetamine, drug paraphernalia, and promethazine located in the room designated as their bedroom.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant argues that the evidence is insufficient to support the convictions.He contends that he was in the bathroom at the time of the search of his residence and was not in physical possession of any drugs.While conceding that the State proved he spent several nights in the bedroom where the jacket containing methamphetamine was recovered, he contends that the State failed to prove that he had knowledge of its existence.He claims that the jacket did not belong to him, noting that it was a size medium while he is "a large man."He further notes that the search was conducted in May, contending it was several months after it would have been cold enough to wear the jacket.He claims that testimony presented at trial varied as to who placed the methamphetamine in the jacket pocket.The defendant contends that the amount of the substance seized, which he describes as a very small amount (adding that it was less than a gram), has a bearing on his guilty knowledge or intent.He argues that the State failed to refute every reasonable hypothesis of innocence or prove beyond a reasonable doubt that he knowingly and intentionally possessed methamphetamine.Regarding the promethazine, the defendant similarly argues that there is no evidence that he knew of its presence.He contends that Irvin had been very ill for three days prior to the search of the residence, and as such, he argues that the State failed to refute the reasonable possibility that Irvin was using the medication to alleviate nausea.

A conviction based on insufficient evidence cannot stand as it violates Due Process.SeeU.S. Const. amend. XIV;La. Const. art. I, § 2.The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved 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. Ordodi, 2006-0207(La.11/29/06), 946 So. 2d 654, 660;seealso LSA-C.Cr.P. art. 821(B).The Jackson v. Virginia standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt.When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the fact finder, in order to convict, must be satisfied the overall evidence excludes every reasonable hypothesis of innocence.When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt.State v. Dyson, 2016-1571(La. App. 1st Cir.6/2/17)222 So. 3d 220, 228, writdenied, 2017-1399 (La.6/15/18), 257 So. 3d 685.

To support the conviction on count one of possession of methamphetamine the State had to prove beyond a reasonable doubt that: 1) the defendant was in possession of the drug, and 2) the defendant knowingly and intentionally possessed it.SeeLSA-R.S. 40:967(C);seealsoState v. Wagner, 2013-1628(La. App. 1st Cir.5/2/14), 2014 WL 1778360, at *7.Regarding count two, possession of a legend drug without a prescription or order, LSA-R.S. 40:1060.13(A) provides, in pertinent part, that it shall be unlawful for any person to possess any legend drug except upon the order or prescription of a physician or licensed health care practitioner as defined in LSA-R.S. 40:961.SeealsoState v. Mendez, 2013-909(La. App. 5th Cir.4/23/14), 140 So. 3d 284, 290-91, writdenied, 2014-1085 (La.1/9/15), 157 So. 3d 596.In this case, the defendant does not contest that promethazine is a legend drug.SeeLSA-R.S. 40:1060.11(3).See 40:1060.11(3).

On the issue of whether the evidence sufficiently proved possession, the State is not required to show actual possession of the drugs by a defendant in order to convict.State v. Trahan, 425 So. 2d 1222, 1226(La.1983);State v. Howard,2018-0317(La. App. 1st Cir.9/21/18), 258 So. 3d 66, 74, writdenied, 2018-1650 (La.5/9/19), 269 So. 3d 692.Constructive possession is sufficient.A person is considered to be in constructive possession of a drug if it is subject to his dominion and control, regardless of whether or not it is in his physical possession.Also, a person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug.State v. Hamilton, 2002-1344(La. App. 1st Cir.2/14/03), 845 So. 2d 383, 392, writdenied, 2003-1095 (La.4/30/04), 872 So. 2d 480.However, mere presence in the area where narcotics are discovered or mere association with the person who controls the drugs or the area where the drugs are located is insufficient to support a finding of constructive possession.State v. Harris, 94-0970(La.12/8/94), 647 So. 2d 337, 338(per curiam);Howard, 258 So. 3d at 74.

A determination of whether or not there is possession sufficient to convict depends on the peculiar facts of each case.Relevant factors to be considered in determining whether a defendant exercised dominion and control...