State Of Louisiana v. Walter Terell Fisher, Jr.

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 0669

STATE OF LOUISIANA

VERSUS

WALTER PERELL FISHER, JR.

Judgment Rendered: NOV 15 2019

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 Counsel for Appellee, Matthew Caplan State of Louisiana J. Bryant Clark, Jr. Covington, LA

Cynthia K. Meyer Counsel for Defendant/Appellant, New Orleans, LA Walter Perell Fisher

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

C%t r Y,

WHIPPLE, C.J.

The defendant, Walter Perell' Fisher, was charged by bill of information'

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 drug' ( promethazine) without a

prescription or order, a violation of LSA-R.S. 40: 1060. 13 ( count two).4 He 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 one

The record is inconsistent as to whether the defendant' s middle name is Perell or Terell and in regards to the designation of him as a junior. The name used in this appeal is consistent with the bill of information.

While tried separately, the defendant was charged in the same bill of information with Richard Joseph Dantin and Samantha Ann Irvin. Also, while the defendant was only tried on the two drug offenses identified herein, he was charged by the same bill of information with two counts of contributing to the delinquency ofjuveniles, violations of LSA-R.S. 14: 92.

3uLegend drug" is defined as " any drug or drug product bearing on the label of the manufacturer or distributor, as required by the Federal Food and Drug Administration, the statement ` Caution: Federal law prohibits dispensing without prescription."' LSA- R.S. 40: 1060. 11( 3); see also LSA-R.S. 40: 961( 25).

4The instant offenses were committed on May 1, 2017. As a result of the 2018 amendment of LSA-R.S. 40: 1060. 13, the offense of possession of a legend drug without a prescription or order ( count two) was downgraded to a misdemeanor, punishable by a fine of not more than five hundred dollars, imprisonment for not more than six months, or both. See LSA- R.S. 40: 1060. 13( B). However, at the time of the instant offense, it was punishable by imprisonment, with or without hard labor, for not more than five years and a non -mandatory fine of not more than five thousand dollars. See LSA-R.S. 40: 1060. 13 ( prior to amendment by 2018 La. Acts, No. 203, § 1). Thus, the offense on count two was a felony at the time of its commission.

and ten years imprisonment at hard labor on count two.'

The trial court further ordered that the sentences be served without the

benefit of probation or suspension of sentence and that they run consecutively.' The 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 drug

The habitual offender adjudication was based on predicate offenses of possession of a Schedule II controlled dangerous substance ( a violation of LSA-R. S. 40: 967( C), possession of a legend drug without a prescription ( a violation of LSA-R.S. 40: 1238. 1 ( later redesignated as LSA-R.S. 40: 1060. 13)), possession of marijuana, second offense ( a violation of LSA-R. S. 40: 966( C)) and possession or introduction of contraband into a penal institution ( a violation of LSA-R.S. 14: 402).

6After the habitual offender adjudication and resentencing, the defendant filed a motion for post -verdict judgment of acquittal and a motion for new trial. The trial court denied both of the motions.

ki

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transaction.' After 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.'

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.

Agent Everly testified that before he opened the porch door, he heard one of the individuals complain that he was not getting his money' s worth, as Dantin and the other male subject argued over product pricing. The other individual, Jeremy Oaks, was arrested on an unrelated warrant.

Deana Bard, a lab analyst at the St. Tammany Parish Sheriff' s Office Crime Lab, testified that she tested the white pill removed from the nightstand and identified it as promethazine. She further confirmed that the crystalline material from the red container, found in the pocket of the Saints jacket, consisted of methamphetamine. Detective McNeese testified

that along with the items found in the defendant' s bedroom, additional narcotics, another pipe commonly used with methamphetamines), plastic baggies with the corners torn off (commonly used to package powder substances), straws, and a mirror ( commonly used to snort powder substances) were found in the residence.

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. See U.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; see also 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, writ denied, 2017- 1399 ( La. 6/ 15/ 18), 257 So. 3d

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. See LSA-R.S. 40: 967( C); see also State 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. See also State v. Mendez, 2013- 909

La. App. 5th Cir. 4/ 23/ 14), 140 So. 3d 284, 290- 91, writ denied, 2014- 1085 ( La. 1/ 9/ 15), 157 So. 3d 596. In this case, the defendant does not contest that

promethazine is a legend drug. See LSA-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,

M

2018- 0317 ( La. App. 1st Cir. 9/ 21/ 18), 258 So. 3d 66, 74, writ denied, 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, writ denied, 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 sufficient to constitute constructive possession include: ( 1) his knowledge that illegal drugs

were in the area; ( 2) his relationship with the person, if any, found to be in actual possession; ( 3) his access to the area where the drugs were found; ( 4) evidence of

recent drug use by the defendant; ( 5) his physical proximity to the drugs; and ( 6) any evidence that the particular area was frequented by drug users. Guilty knowledge, an essential component of constructive possession of contraband, may be inferred from the circumstances of the case. State v. Moultrie, 2014- 1535 ( La.

App. 1st Cir. 12/ 14/ 17), 234 So. 3d 142, 145, writ denied, 2018- 0134 ( La.

12/ 03/ 18), 257 So. 3d 1252.

Detective McNeese testified that in addition to the drugs at issue herein, the

marijuana grinder, the digital scale, and plastic baggies, he recovered a Charter bill

in Irvin' s name for the residence at issue. He also stated that the defendant' s

Louisiana Purchase Card' was located in a box that was on a shelf of shoes. When

asked on cross- examination what evidence he had that the defendant lived in the

residence, Detective McNeese stated that the police had statements from subjects

on the scene, the presence of male clothing and shoes, and the defendant' s Louisiana Purchase Card.

Additionally, Officer Esque recalled seeing in the residence bills addressed to the defendant at another address. Officer Esque further testified that male and

female clothing were located in the bedroom closet. When asked if he thought the defendant could fit the black Saints jacket that contained the methamphetamine, he

testified, " That particular jacket. Yes, sir." While the jacket was not seized, it was

photographed in its original location along with the rest of the interior of the bedroom and other parts of the residence. Officer Esque further testified that the

defendant told him that the dog present at the residence, a Pit Bull, belonged to him. Dantin admitted that the drugs located on his person and in the common

areas of the residence belonged to him.

While not necessarily agreeing to the veracity of the testimony of either witness, the parties entered into a stipulation that if Irvin and Dantin were called at

trial to testify, they would testify in accordance with their testimony given months earlier in the case against Dantin and in an unrelated case against the defendant.

Dantin, in part, testified that the defendant and Irvin were staying at his and his fiancee Smith' s house, that the defendant and Irvin had their own bedroom, and

that he had limited access to their bedroom. He added that he would always knock

before entering their bedroom and was never in there outside of their presence. He stated that he found out about the drugs located in their bedroom after they were seized by the police and denied ever placing drugs or drug paraphernalia in their

9A Louisiana Purchase Card was described by Detective McNeese as being food stamps that are directly deposited to a card to allow automatic access.

bedroom. Irvin testified that the methamphetamine belonged to Smith and that

Smith had hidden it in Irvin' s room to prevent Dantin from taking it. Irvin denied that the defendant lived at the residence, stating he visited from " time -to -time." Irvin further denied that the defendant knew about the methamphetamine.

Detective McNeese testified that during her police interview, Irvin initially stated she had no idea about the methamphetamine and the legend drug in their bedroom. Irvin subsequently stated that she believed Dantin had hidden the

methamphetamine in the jacket pocket.

Detective Nicholas Knight, who at the time of the offense was a detective

with the St. Tammany Parish Sheriff's Office Narcotics Task Force, testified that

he interviewed the defendant on May 24, 2017, while investigating an unrelated Miranda10

offense. At the onset of the interview, the defendant was advised of his

rights. During the interview, the defendant, in pertinent part, confirmed that he stayed at two residences and that one of them was located on the south side of

town, where he stayed with Irvin." When asked who else was living at the residence with him and Irvin, the defendant stated, " Mike, Rick, [ and] Ms. Kristie Smith]."

Smith was still residing at the Brookwood Drive residence at the time of trial. She testified that Dantin, the defendant ( whom she called Perrell), and Irvin

lived there with her. Smith further testified that the defendant and Irvin had been

living there for six to eight months prior to the offenses, and the defendant was there the majority of the time. She noted that she and the defendant sometimes had conflicts due to his having friends over who she considered strangers. She

explained that she did not want strange people around her children, who also lived there. She added, " And then he would leave for a couple of days then come back

loMiranda v. Arizona, 384 U. S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 ( 1966).

Detective Knight testified that the defendant was referencing the residence at issue in this case on Brookwood Drive as the one he was staying at with Irvin.

and everything would be okay for a couple weeks and it would happen, multiple times." When asked if she was using methamphetamines at the time of the offenses, Smith stated, " I had been off of it, did before, but off of it." Regarding the defendant and Irvin' s bedroom, Smith stated that it was their private area. She

added, " I don' t like them to come into my bedroom, so I would not go into their bedroom without permission. It is just the way I am." She denied placing methamphetamine in the defendant and Irvin' s room or giving any

methamphetamine to them to hide.

We find that the evidence presented provided a sufficient basis upon which

the jury could have inferred that the defendant was aware of the presence of the methamphetamine and the legend drug in the bedroom and that he exercised dominion and control sufficient to constitute joint constructive possession. The

State presented overwhelming evidence that the defendant lived at the residence on Brookwood Drive and shared the bedroom in question with Irvin. In addition to

the drugs at issue, drug paraphernalia, including a marijuana grinder and a digital scale, was located in the same bedroom. Considering the consistent statements by Dantin and Smith regarding the bedroom, the State established that the defendant and Irvin exercised full access, use, and control over the bedroom where the drugs were found. By contrast, Dantin and Smith testified they would not enter the bedroom without permission from, or in the absence of, the defendant or Irvin. Further, while Dantin and Smith denied having any knowledge of the

methamphetamine and promethazine located in the bedroom, Dantin readily

admitted to possessing items found in the common area of the home. The

defendant did not claim to have nor did he provide the officers with a prescription for the promethazine. Through witness testimony and closing arguments, the jury was made aware of the hypotheses of innocence urged by the defendant, i.e., that he was not aware of the drugs, that he did not live at the residence, and that he and

Irvin shared the bedroom where the drugs were found only when he visited her from time to time. The verdicts indicate that the jury rejected these hypotheses. In reviewing the evidence, we cannot that the jury' s determination was irrational under the facts and circumstances to them. See Ordodi, 946 So. 2d at

662.

A court of appeal impinges on a fact finder' s discretion beyond the extent

necessary to guarantee the tal protection of due process of law in

accepting a hypothesis of innocence was reasonably rejected by the fact finder. See State v. Mire, 2014- 2295 ( La. 1 16), 269 So. 3d 698, 700- 01 ( per curiam);

see also State v. Calloway, 2007- 2106 ( La. 1/ 21/ 09), 1 So. 3d 417, 418 ( per

curiam). After a thorough review of the record, we are convinced that a rational

trier of fact, viewing the evidence ted in this case in the light most favorable

to the State, could find that the State beyond a reasonable doubt, and to the

exclusion of every reasonable is of innocence, all of the elements of

possession of methamphetamine and 4 legend drug without a prescription or order.

Accordingly, we find no merit in assignment of error number one.

ASSIGNMENT 1

In assignment of error number4wo, the defendant argues that the trial court

erred in admitting the videotaped int1Orview of the defendant by Detective Knight pertaining to another investigation, vwherem the defendant confirmed that he lived

with Irvin at the residence in question. He contends that the video was prejudicial and repetitious. He notes that he w4s handcuffed and wearing prison clothing at

I

the time of the interview, arguing that his presumption of innocence was impaired. Further, the defendant contends that the interview was unnecessary as the State had already presented ample evidence that he lived at the residence with Irvin.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or

12

less probable than it would be without the evidence. LSA-C. E. art. 401. All

relevant evidence is admissible, as otherwise provided by positive law. Evidence which is not relevant is admissible. LSA- C. E. art. 402. Although

relevant, evidence may be excl if its probative value is substantially

outweighed by the danger of unfair judice, confusion of the issues, misleading the jury, or by considerations of delay, or waste of time. LSA- C. E. art. 403. As to questions of relevancy, much discretion is vested in the trial court. Such

rulings will not be disturbed on appal in the absence of a showing of manifest abuse of discretion. State v. Schleve 99- 3019 ( La. App. 1st Cir. 12/ 20/ 00), 775

So. 2d 1187, 1199, writs denied, 2001- 0210 ( La. 12/ 14/ 01), 803 So. 2d 983 &

2001- 0115 ( La. 12/ 14/ 01), 804 So. 20 647, cert. denied, 537 U.S. 854, 123 S. Ct. 211, 154 L. Ed. 2d 88 ( 2002).

It is well settled that before the State may introduce an inculpatory statement

or confession into evidence, it must affirmatively show that the statement was free

i

and voluntary and not the result of I fear, duress, intimidation, menace, threats,

inducements, or promises. LSA-R.S!, 15: 451; LSA-C. Cr.P. art. 703( D); State v.

Anderson, 2006- 2987 ( La. 9/ 9/ 08), 996 So. 2d 973, 994, cert. denied, 556 U.S.

1165, 129 S. Ct. 1906, 173 L. Ed. 1057 ( 2009). The State must prove that the

accused was advised of his Miranda and voluntarily waived those rights in order to establish the admissibility of a statement made during custodial

interrogation. State v. Scarboroup-h, 1' 2018- 1791 ( La. 11/ 14/ 18), 256 So. 3d 265, 265- 66 ( per curiam). A court look to the totality of the circumstances surrounding the confession to its voluntariness. State v. Manning, 2003-

1982 ( La. 10/ 19/ 04), 885 So. 2d 1 1075, cert. denied, 544 U.S. 967, 125 S. Ct.

1745, 161 L. Ed. 2d 612 ( 2005).

Although the defendant did not file a motion to suppress the statement at

issue, he did object at trial to the interview being played before the jury. In doing

13

so, defense counsel objected on the grounds that the interview took place a month

after the instant offense, noting that the defendant stated that he lived at the residence at issue in this case at some point in time. The defense counsel further

stated that the " point of time" was " about a month apart." The defendant did not

assert any other basis for his objection. The State noted that it would only play a portion of the interview, noting that the offense being investigated would not be mentioned. After the trial court' s ruling, a second bench conference took place wherein the State informed the trial court that defense counsel wanted to play the entire interview. The defense counsel noted that the jury was already aware of the defendant' s other charge, as it was mentioned in Irvin' s statement, admitted by the defense. 12 The trial court ruled to limit the interview to twelve minutes, as initially indicated by the State.

At the outset, we note that a new ground for objection cannot be raised for

the first time on appeal. The basis or ground for the objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. A defendant is limited on appeal to the

grounds for the objection that were articulated at trial. See LSA-C. Cr.P. art. 841

and LSA- C. E. art. 103( A)( 1); see also State v. Young, 1999- 1264 ( La. App. 1st

Cir. 3/ 31/ 00), 764 So. 2d 998, 1005. As the defendant did not raise them below, he

is precluded from asserting the arguments raised on appeal. Nevertheless, as

noted, the record shows that the defendant was fully advised of his rights and voluntarily waived his rights at the time of the statement. As further noted by defense counsel, the jury was already aware that the defendant was being investigated in another case. Moreover, as the defendant concedes, the recording was cumulative to other trial testimony indicating that he lived at the residence

12While the defense counsel inadvertently referenced " Kristie' s statement" when noting that the jury already knew about the defendant' s other case, the defense actually admitted the transcript of testimony by Samantha Irvin, not Smith, from the unrelated case.

14

with Irvin. Accordingly, any error in the admission of the brief portion of the recorded interview of the defendant was harmless beyond a reasonable doubt. See LSA- C. Cr.P. art. 921; see also Schleve, 775 So. 2d at 1199- 1200.

Thus, assignment of error number two also lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In assignment of error number three, the defendant contends that the State' s

closing argument was improper. He first identifies the portion of the closing in which the State indicated that defense counsel lied to the jury. He specifically notes that although defense counsel' s objection was sustained after the prosecutor

indicated that defense counsel had lied to the jury regarding the defendant' s residency, thereafter, the State again suggested that defense counsel lied. He

further argues that the State, by focusing on the broader issue of drug use in St. Tammany Parish, improperly diverted the jury' s attention from its duty to decide the case based on the evidence. The defendant argues that the State caused the jury to return a verdict based on their perceived duty to protect the community from drug users rather than the evidence presented. The defendant concedes that

defense counsel did not object to this portion of the State' s closing argument, but notes that the Louisiana Supreme Court has instructed that errors that affect the

substantial rights of the accused are reviewable by an appellate court even absent contemporaneous objection. The defendant concludes that the convictions should

be vacated.

Closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case. Further, the State' s rebuttal shall

be confined to answering the argument of the defendant. See LSA-C. Cr.P. art.

774. The trial judge has broad discretion in controlling the scope of closing argument. State v. Mitchell, 2016- 0834 ( La. App. lst Cir. 9/ 21/ 17), 231 So. 3d

15

7109 719, writ denied, 2017- 1890 ( La. 8/ 31/ 18), 251 So. 3d 410. Upon request of

the defendant, the court may, in its discretion, grant a mistrial or an admonishment, premised upon argument by opposing party that is irrelevant or immaterial and of such a nature that it might create prejudice against defendant in the mind of the

jury. LSA-C. Cr.P. arts. 770 and 771.

Prosecutors are allowed wide latitude in choosing closing argument tactics.

State v. Patton, 2010- 1841 ( La. App. 1st Cir. 6/ 10/ 11), 68 So. 3d 1209, 1221. The

State should avoid personal attacks on defense counsel and trial strategy. State v. Jones, 2015- 0123 ( La. App. 4th Cir. 12/ 2/ 15), 182 So. 3d 251, 279, writ denied,

2016- 0027 ( La. 12/ 5/ 16), 210 So. 3d 810. However, such statements generally do not rise to the level that would merit reversal of conviction. See State v. Dabney,

2015- 0001 ( La. App. 4th Cir. 9/ 9/ 15), 176 So. 3d 515, 527, 529, writ denied, 2015- 1852 ( La. 10/ 17/ 16), 208 So. 3d 374 ( holding that " instances where the State attacked defense strategy and tactics, branded defense counsel a liar and not worthy of belief, and suggested that the defendant may have killed someone in the past" did not require reversal "[ i] n light of the traditional breadth accorded the

scope of closing argument by the courts of this state"). Even if the prosecutor

exceeds the bounds of proper argument, a reviewing court will not reverse a

conviction if not " thoroughly convinced" that the argument influenced the jury and contributed to the verdict. Patton, 68 So. 3d at 1221.

In the instant case, the defendant references the following portions of the State' s closing argument referring to defense counsel:

Now, Mr. Craig is a very skilled attorney and we never know what is going to be said in court, what we will have to defend against until we get here and what did we hear?

We heard that Perrell didn' t even live there. So I ask you this, if the truth will set you free why did he lie to you about that? Why does he tell you that Perrell didn' t live there? Perrell' s clothes were there. Perrell' s girlfriend stayed in that room. Perrell' s Louisiana Purchase card was in that room...

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Defense counsel subsequently objected to the characterization of his opening statement as a lie. After the State denied calling defense counsel a liar, the trial court instructed the State to " clear it up." The State then continued as follows,

What I meant to say before is why would the defense be a lie? Why would the defense try to present evidence to you that Perrell didn' t live in that house when that clearly is not true?" No further objections were made.

The defendant concedes that there was no objection to the portion of the

State' s rebuttal argument wherein the State suggested that the prosecution was

responsible for the State of Louisiana and the parish. Insofar as the necessity of an objection to preserve these issues for appellate review, the defendant appears to be

relying upon Federal Rule of Criminal Procedure 52( b), which provides that " A plain error that affects substantial rights may be considered even though it was not brought to the court' s attention." While federal law provides for plain error,

Louisiana law does not. The Federal Rules of Criminal Procedure are not

applicable in the instant case. Howard, 258 So. 3d at 83- 84; State v. Rubens,

2010- 1114 ( La. App. 4th Cir. 11/ 30/ 11), 83 So. 3d 30, 52- 53, writs denied, 2012-

0374 ( La. 5/ 25/ 12), 90 So. 3d 410 & 2012- 0399 ( La. 10/ 12/ 12), 99 So. 3d 37, cert.

denied, 568 U.S. 1236, 133 S. Ct. 15951 185 L. Ed. 2d 591 ( 2013). As stated

above, the transcript of the trial reflects that the defendant failed to

contemporaneously object or make a motion for mistrial on the basis of the prosecutor' s statement during the rebuttal. Thus, because that claim was not

preserved for appellate review, the defendant may not raise it on appeal. See LSA- C. Cr.P. art. 841; State v. Taylor, 93- 2201 ( La. 2/ 28/ 96), 669 So. 2d 364, 367- 69,

cert. denied, 519 U.S. 860, 117 S. Ct. 162, 136 L. Ed. 2d 106 ( 1996); State v.

Palmer, 2000- 0216 ( La. App. 1st Cir. 12/ 22/ 00), 775 So. 2d 1231, 1236, writs

denied, 2001- 0211 ( La. 1/ 11/ 02), 807 So. 2d 224 & 2001- 1043 ( La. 1/ 11/ 02), 807

So. 2d 229.

17

Regarding the defendant' s complaint of the State referring to defense counsel as a liar, we note that during jury instructions, the trial court informed the jury that statements of counsel are not evidence. As the defendant concedes, the

trial court also informed the jury that opening and closing arguments are not to be considered as evidence. We further note that credit must be given to the " good

sense and fair-mindedness of the jurors who heard the evidence" at trial. State v.

Mills, 2013- 0573 ( La. App. 1st Cir. 8/ 27/ 14), 153 So. 3d 481, 496, writs denied,

2014- 2027 ( La. 5/ 22/ 15), 170 So. 3d 982 and 2014- 2269 ( La. 9/ 18/ 15), 178 So. 3d

139. The comments at issue herein were in response to the hypothesis of

innocence presented at trial. Despite ample evidence otherwise, the defense

attempted to show that the defendant did not live at the residence in question.

Therefore, the remarks are arguably within the scope of LSA-C. Cr.P. art. 774. Moreover, we are not " thoroughly convinced" the comments, even if improper,

contributed to or influenced the verdict considering the entirety of the record. We

note that defense counsel did not request an admonishment.

Thus, in accordance with the above, insofar as it is not precluded,

assignment of error number three lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In assignment of error number four, the defendant argues that the trial court

erred in failing to respond to the jury' s .request to view the exhibits. In arguing that it is likely that the jury was confused by Irvin' s guilty plea to possession of the methamphetamine found in the jacket pocket and the legend drug found on the nightstand, he notes that the jury also asked to be re -instructed on " jointness." He

argues that while the trial court recharged the jury on joint possession, the trial court erred in stopping there. Noting that the jury specifically requested to see photos" and " other evidence," he argues that the trial court should have inquired

as to what specific photographs and other evidence the jury wanted to view. In

18

arguing that the trial court failed to carry out its duty to determine the true source of confusion or need for information, the defendant notes that jurors are untrained

laymen. The defendant concedes that the record is devoid of an objection in this

regard, but argues this issue should be reviewed on appeal absent a

contemporaneous objection as his due process rights were violated by the trial court' s failure to respond to the jury' s request to view the photos and evidence.

Pursuant to LSA-C. Cr.P. art. 793, which prohibits the use of written material

during deliberations, in general, a juror must rely upon his memory in reaching a verdict. Under the plain language of Article 793, a videotape or a photograph, is

neither testimony nor written evidence and is not excluded by Article 793. Hence,

granting a jury' s request to see a photograph after it retired to deliberate is not an abuse of the court' s statutory discretion. See State v. Davis, 92- 1623 ( La.

5/ 23/ 94), 637 So. 2d 1012, 1025, cert. denied, 513 U.S. 975, 115 S. Ct. 450, 130 L.

Ed. 2d 359 ( 1994); State v. Cespedes, 2017- 1087 ( La. App. 1st Cir. 12/ 29/ 17), 241 So. 3d 342, 349, writ denied, 2018- 0263 ( La. 12/ 17/ 18), 259 So. 3d 340.

In this case, while the jury sent a note asking to see the photographs and other evidence, there is nothing in the record to reveal whether the request was granted or not. After the jury asked for a definition of "jointness," the trial court reinstructed the jury on the elements of the offenses, constructive possession, and joint possession. The trial court then asked if there was anything further that the jury would like the court to read, and there was no response reflected in the transcript. Neither the jury nor defense counsel requested that the jury receive additional instructions. See LSA-C. Cr.P. arts. 801 and 808. Further, defense

counsel failed to assert a contemporaneous objection to the lack of any further instruction to the jury by the trial court. The failure to raise a contemporaneous

objection to a ruling of the court constitutes a waiver of that objection. LSA-

C. Cr.P. art. 841; State v. Calvert, 2007- 1910 ( La. App. 1st Cir. 6/ 6/ 08), 2008 WL

19

2332323, at * 3, writ denied, 2008- 1602 ( La. 4/ 17/ 09), 6 So. 3d 784. Moreover, the

defendant has failed to show he suffered any prejudice from the trial court' s ruling because the jury had the opportunity to view the photographs and other exhibits during the trial.

Accordingly, we find no merit in assignment of error number four.

ASSIGNMENT OF ERROR NUMBER FIVE

In assignment of error number five, the defendant argues that the sentences

are excessive. He notes that he was convicted of possessing one pill, the legend drug of promethazine, for which he was sentenced to ten years imprisonment to be served consecutive to the four-year sentence imposed on the conviction of

possessing methamphetamine. He further notes that had he been charged with

possessing a legend drug fifteen months later, under the revised law, the offense would have been a misdemeanor as opposed to a felony. The defendant notes that the revision of LSA-R.S. 40: 1060. 13 is a continuation of the Louisiana Justice

Reinvestment Reforms enacted by the legislature to decrease the penalty for nonviolent drug offenses. He further notes that courts have made exceptions to the presumption in Louisiana that the statute in effect at the time of the commission of

an offense governs the applicable punishment.

The defendant contends that his sentences shock the sense of justice. He

argues that he was penalized for exercising his right to trial and denying the allegations of the habitual offender bill of information instead of accepting the State' s offer of a fourteen -year sentence in exchange for a guilty plea to being a second felony offender. He argues that the fourteen -year jail term imposed in this case makes no measurable contribution to acceptable penal goals, and therefore, is

nothing more than needless imposition of pain and suffering. He notes that as a

general rule, maximum sentences should be reserved for the worst offenders and

the worst offenses. Stating that he possessed a " bare minimum" amount of a

20

narcotic and one pill of an antihistamine legend drug, he argues that he cannot be considered the " worst of the worst."

Article I, Section 20 of the Louisiana Constitution prohibits the imposition

of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant' s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979);

State v. Peters, 2017- 0208 ( La. App. 1st Cir. 11/ 1/ 17), 233 So. 3d 97, 99. A

sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99- 2868 ( La. App. 1st Cir. 10/ 3/ 00), 797 So. 2d 75, 83, writ denied, 2000- 3053 ( La. 10/ 5/ 01), 798 So. 2d 962. A sentence is

grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. A trial court is given

great discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Collins, 2009- 1617 ( La. App. 1st Cir.

2/ 12/ 10), 35 So. 3d 1103, 1108, writ denied, 2010- 0606 ( La. 10/ 8/ 10), 46 So. 3d

1265.

Louisiana Code of Criminal Procedure article 894. 1 sets forth the factors for

the district court to consider when imposing sentence. While the entire checklist of Article 894. 1 need not be recited, the record must reflect that the district court

adequately considered the criteria. In light of the criteria expressed by article 894. 1, a review for individual excessiveness should consider the circumstances of

the crime and the trial court' s stated reasons and factual basis for its sentencing decision. State v. Brown, 2002- 2231 ( La. App. 1st Cir. 5/ 9/ 03), 849 So. 2d 566,

569. Remand is unnecessary when .a sufficient factual basis for the sentence is

21

shown. State v. Lanclos, 419 So. 2d 475, 478 ( La. 1982); State v. Graham, 2002-

1492 ( La. App. 1st Cir. 2/ 14/ 03), 845 So. 2d 416, 422.

In accordance with the laws in effect at the time of the offenses, herein, on

count one, the defendant was exposed to a sentence range of not more than five

years imprisonment with or without hard labor and a non -mandatory fine of not more than five thousand dollars. LSA-R.S. 40: 967( C)( 2) ( prior to amendment by

2018 La Acts, No. 677, § 1). On count two, the defendant was exposed to a

sentencing range of not more than five years imprisonment, with or without hard labor, and a non -mandatory fine of not more than five thousand dollars. LSA-R.S. 40: 1060. 13( C) ( prior to amendment by 2018 La Acts, No. 203,§ 1). As a third

felony offender, the defendant faced an enhanced sentencing range on count one of three years and four months to ten years imprisonment, and an enhanced

sentencing range on count two of three years and four months to ten years imprisonment, with or without hard labor. LSA-R.S. 15: 529. 1( A)(3)( a) ( prior to

amendment by 2017 La Acts, Nos. 257 and 282, §§ 1) (" not less than two-thirds of

the longest possible sentence for the conviction and not more than twice the

longest possible sentence prescribed for a first conviction"). See also LSA-R.S.

15: 529. 1( K) ( added by 2018 La Acts, No. 542 § 1). In this case, the trial court

imposed four years imprisonment at hard labor on count one and ten years

imprisonment at hard labor on count two.

In State v. Wright, 384 So. 2d 399, 401 ( La. 1980), the Louisiana Supreme

Court held that " the law in effect at the time .of the commission of the offense is

determinative of the penalty which the convicted accused must suffer." This has

been the rule of law consistently applied by the courts of this state. State v. Martin, 2001- 2986 ( La. App. 1st Cir. 6/ 21/ 02), 822 So. 2d 153, 154. The cases cited by the defendant on appeal are not controlling in the instant case. In State v. Priest, 2018- 518 ( La. App. 5th Cir. 2/ 6/ 19), 265 So. 3d 993, 1006, writ denied, 2019- 0418 ( La.

22

5/ 20/ 19), 271 So. 3d 201, while the fifth circuit considered changes to the

applicable statute in finding the defendant' s thirty-year sentence for possession of 400 grams of methamphetamine excessive, the court acknowledged that the

amendments were not to be applied retroactively. In State ex rel. Esteen v. State,

2016- 0949 ( La. 1/ 30/ 18), 239 So. 3d 233, 238, the Louisiana Supreme Court

allowed resentencing pursuant to the more lenient penalty provisions enacted by the legislature in 2001, which were later declared in LSA-R.S. 15: 308( B) to apply

retroactively to certain defendants who committed crimes, were convicted, or were sentenced prior to June 15, 2001. As the offenses were committed and the

defendant was convicted and sentenced after June 15, 2001, LSA-R.S. 15: 308 does

not apply to the instant case. Additionally, we note that the holding in State v. Mayeux, 2001- 3195 ( La. 6/ 21/ 02), 820 So. 2d 526, 530- 531, also cited by the defendant, was limited to LSA-R.S. 14: 98, and the specific statutory language at issue in that case. Finally, we note that it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.

State v. Albarado, 2003- 2504 ( La. App. 1 st Cir. 6/ 25/ 04), 878 So. 2d 849, 852, writ denied, 2004- 2231 ( La. 1/ 28/ 05), 893 So. 2d 70. Thus, the sentencing comparisons

made by the defendant are of little value Maximum sentences may be imposed for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. Albarado, 878 So. 2d at 852. In

imposing the sentences, the trial court considered the facts of the instant case and the fact that the defendant' s " consistent problems" indicated a long-standing drug problem. The court considered the Article 894. 1( B) factors, and recommended

drug rehabilitation treatment. We note that the defendant' s lengthy criminal record dates back to 1990. On count one, the trial court imposed an enhanced sentence

within the lower range of the possible sentences. Moreover, while the defendant

23

received the maximum prison term for the enhanced sentence on count two, as the

trial court noted, the State could have sought a fourth felony habitual offender adjudication in this case. Specifically, in addition to the possession of marijuana, second offense, and possession or introduction of contraband into a penal

institution offenses used to support the third -felony habitual offender adjudication, the habitual offender bill of information also lists a predicate conviction of battery on a correctional facility employee. Moreover, the defendant' s rap sheet includes numerous arrests, parole revocations, convictions for cocaine, legend drug, marijuana, and other drug offenses, and convictions for simple robbery and illegal possession of stolen things. Further, while the defendant argues that he was

penalized for exercising his right to trial, he concedes that the length of the sentences ultimately imposed in this case is equivalent to the length of sentences offered by the State, but rejected by the defendant.

In this case, considering defendant' s lengthy criminal record and reduced penalty exposure, we find the four-year enhanced sentence on count one and ten- year enhanced sentence on count two, to run consecutively, are not grossly

disproportionate to the severity of the offenses. Therefore, the sentences are not

unconstitutionally excessive. We find that the trial court did not err or abuse its discretion in denying the motion to reconsider sentence.

This assignment of error lacks merit.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.

NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 0669

STATE OF LOUISIANA

VERSUS

WALTER PERELL FISHER, JR.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J., dissenting.

I respectfully dissent from the majority opinion in this matter. The defendant in this matter received consecutive sentences under the Habitual Offender Law of

four years for possession of a minimal amount of methamphetamine and a maximum

sentence of ten years for possession of one promethazine pill, a legend drug. I

recognize that the defendant was a recidivist sentenced under the law in effect at the

time of the commission of the offense; however, when considering the facts of this case, the combined sentence of fourteen years shocks the conscious and is a needless imposition of punishment. This is particularly so in light of the fact that the charge for possession of the promethazine pill would have been a misdemeanor rather than

a felony had it occurred fifteen months later, pursuant to the continuation of the Louisiana Justice Reinvestment Reforms. Under the facts of the instant case, the defendant is not the worst offender, and possession of one pill and a de minimis

amount of a controlled substance are not the worst offenses deserving of consecutive sentences. The maximum enhanced sentence of ten years running consecutive to the four-year sentence violates the prohibition against excessive punishment. See State

v. Thompkins, 18- 2104, pp. 1- 2 ( La. 6/ 17/ 19), 274 So. 3d 1252, 1253 ( per curiam).