STATE of Louisiana v. Stephen J. EGANA.
No. 97-KA-0318.
Court of Appeal of Louisiana, Fourth Circuit.
December 3, 1997.
703 So.2d 223
Before PLOTKIN, JONES and CIACCIO, JJ. JONES, Judge.
Pamela S. Moran, Louisiana Appellate Project, New Orleans, for Defendant/Appellant.
Stephen J. Egana appeals his conviction for attempted possession of cocaine and his sentence as a multiple offender. We remand for an evidentiary hearing as to whether Egana was compelled to commence trial wearing prison garb.
Egana was charged along with a co-defendant, Julie Norwood, with possession of cocaine. After a trial, a six member jury found him guilty of attempted possession of cocaine. The trial court sentenced him to two years at hard labor and ordered the sentence to be served under the provisions of
ERRORS PATENT
Our review of the record for errors patent indicates there were none.
FACTS
Officer Robert Haar testified that on June 13, 1996, at approximately 12:30 a.m., he and his partner Officer Daniel Scanlan received a call that a cream colored station wagon might be casing the area around the 500 block of Warrington Drive, near Mount Olivet Cemetery. The officers entered the cemetery and observed a cream colored station wagon parked with its lights off. The officers parked fifteen feet in front of the car and illuminated it with their high beams. Officer Haar testified that he saw the passenger, Julie Norwood, discard a shiny object out of the passenger side window. Egana, the driver, slouched down and bent forward as if he were trying to conceal something. The officers ordered both people out of the car and conducted a pat down search that produced no weapons or contraband. Officer Scanlan testified that he illuminated the interior of the car with a flashlight and saw a hole in the floorboard of the car. He reached under the car and recovered a small clear plastic bag containing two white rocks of cocaine. A search of the interior recovered two single edged razor blades, a small metal rod, and a Victoria matchbox containing used and unused matches. The items were found on the passenger side of the front bench seat.
Officer Scanlan further testified that as he approached the vehicle he saw both Ms. Norwood and Egana throw a shiny metal pipe out of their respective car windows each was sitting near. Officer Scanlan retrieved the pipe on the driver‘s side, which he recognized as a crack pipe. The pipe was hot to the touch. Inside the car was a “sickly sweet smoky haze.”
The State introduced into evidence two crack pipes and two pieces of crack cocaine. The parties stipulated that both pipes contained cocaine residue.
Ms. Norwood took the stand for the defense and testified that the drugs and the paraphernalia belonged to her.
ASSIGNMENT OF ERROR NO. ONE:
Before trial began, the following colloquy took place on the record:
THE COURT:
You‘ve got clothes? You‘ve got clothes?
THE DEFENDANT:
He never told me I needed clothes.
THE COURT:
What?
THE DEFENDANT:
He never said I needed clothes.
THE COURT:
Well, you knew you were going to trial today.
THE WOMAN IN THE AUDIENCE:
No one told me to bring any clothes.
THE COURT:
No, ma‘am. He‘s got to let you know if he goes to trial to bring his clothes. If he has clothes, I‘ll let him wear them. If he doesn‘t have clothes, I can‘t—I mean, there‘s nothing I can do if he doesn‘t have any clothes.
Bring the jury in, please.
(Mr. Scaccia confers with the judge. Mr. Scaccia asked the court reporter to note the defense‘s objection.)
Egana assigns as his first assignment of error that the trial court forced him to go to trial in prison garb over his objection. He argues that he expressed a desire to be tried in civilian clothing and told the court that his attorney did not advise him that he needed civilian clothing.
In his per curiam the trial court stated:
The defendant, Stephen J. Egana, was not compelled to proceed to trial in prison clothing. Stephen J. Egana, went to trial in this section of court on September 9, 1996. The policy of this court at that time, was to allow defendants to change from prison clothing to civilian clothing if civilian clothing was brought to court for them on the morning of trial. If no clothing was brought to court for a pre-trial detainee, then the court would provide the defendant with civilian clothing for his trial.
This court has no independent recollection of whether Stephen Egana went to trial in clothing provided to him from someone in the court or whether the court provided him civilian clothing, but under no circumstances would the defendant be allowed to proceed to trial in prison clothing at that time if he objected to doing so.
The per curiam appears inconsistent with the remarks of the trial court prior to the trial wherein it stated “... there is nothing I can do if he doesn‘t have any clothes..... Bring the jury in, please.”
The argument by Egana that he was compelled to go to trial in prison garb has merit. “A jury trial commences when the first prospective juror is called for examination“.
In State v. Brown, 585 So.2d 1211, 1212-1213 (La.1991), the Louisiana Supreme Court reviewed the law on point:
Compelling a criminal defendant to stand trial in readily identifiable prison attire over his express objection infringes upon his presumption of innocence and denies the defendant due process of law.
LSA-Const.1974, Art. I, Sec. 16 ; Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); State v. Spellman, 562 So.2d 455 (La.1990); State v. Brown, 368 So.2d 961 (La.1979) (on rehearing); State v. Leggett, 363 So.2d 434 (La.1978); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972). The practice is “inherently prejudicial...,” threatens the “fairness of the factfinding process ...,” and serves “no essential state policy....” Estelle v. Williams, supra, 425 U.S. at 503-505, 96 S.Ct. at 1692-93. The failure of a defendant to make a timely objection “is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” Id. 425 U.S. at 513, 96 S.Ct. at 1697. As this Court recently emphasized in State v. Spellman, supra, however, when the defendant makes known his opposition to standing trial clad in identifiable prison attire before the jury has been impaneled, “[a] reasonable delay is appropriate to accommodate a defendant‘s right to be tried in his own clothes and, moreover, works no hardship on the state.” Id. 562 So.2d at 456.
There is no indication from the record that Egana was not compelled to go to trial in prison grab. Further, the testimony of the officers concerning the description of Egana‘s clothing was offered after the case was called to trial, the jury empaneled and sworn, the bill of information read, and opening statements. The record does not indicate that the trial court afforded Egana the opportunity to change from prison garb into regular clothes prior to trial.
Considering the record before us, we are compelled to remand this matter to the trial court for a full evidentiary hearing as to whether Egana was compelled to commence trial over his objection, while wearing identifiable prison clothing.
ASSIGNMENT OF ERROR NO. TWO:
Egana argues that the State failed to present evidence sufficient to support the conviction.
In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded.
In order to support a conviction for possession of cocaine, the State must prove that the defendant was in possession of the cocaine and that he knowingly possessed it. State v. Chambers, 563 So.2d 579 (La. App. 4th Cir.1990). However, that possession may be constructive instead of actual possession. State v. Reaux, 539 So.2d 105 (La.App. 4th Cir.1989). A defendant is in constructive possession if he exercises dominion and control over the contraband. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Reaux, supra. The mere presence of the defendant in an area where drugs are found or the mere fact that the defendant knows the person in actual possession is insufficient to prove constructive possession. State v. Collins, 584 So.2d 356 (La.App. 4th Cir.1991). However, a person not in physical possession of the drugs may have constructive possession when the drugs are under that person‘s dominion and control. State v. Jackson, 557 So.2d 1034 (La.App. 4th Cir. 1990).
Several factors are considered in determining whether the appellant exercised dominion and control over the contraband so as to constitute constructive possession: 1) the defendant‘s knowledge that illegal drugs are in the area; 2) the defendant‘s access to the area where the drugs are found; and 3) the defendant‘s physical proximity to the drugs. State v. Collins, 584 So.2d at 360.
Egana in this case alleges the evidence was not sufficient because Norwood testified that the cocaine was hers. However, the jury chose not to believe her. Instead the jury believed the officers. Scanlan said that he saw Egana throw the crack pipe out of the window of the car. The pipe, which was found to contain cocaine residue, was hot. The car was filled with smoke. Also, the rocks of cocaine were found underneath the car, directly beneath a hole in the floorboard of the car where Egana was sitting. Accordingly, it appears that the evidence was sufficient to prove that Egana had constructive possession of the cocaine. Since the evidence was sufficient to support a conviction for possession, it was clearly sufficient to support a conviction for the lesser included offense of attempted possession.
This assignment is without merit.
ASSIGNMENT OF ERROR NO. THREE:
At the multiple bill hearing, the trial court stated that the multiple bill alleged that
Egana now complains that the trial court advised him of his rights before it was explained to him how he could be multiple billed. He complains that he did not understand the nature of the hearing.
The trial court in this case meticulously advised Egana of his rights. Although at one point Egana stated he did not understand how he could be multiple billed, once the trial court explained the situation, he indicated that he understood.
This assignment is without merit.
ASSIGNMENT OF ERROR NO. FOUR:
Egana argues his sentence was excessive. The State argues that Egana is prevented from raising this issue because although he objected to his sentence, he did not file a motion to reconsider. Our review of the record indicates that Egana has preserved this issue for review by this Court. State v. Davis, 93-0663 (La.App. 4 Cir. 2/25/94), 633 So.2d 822, writ den., 94-2077 (La.9/20/96), 679 So.2d 422.
If adequate compliance with
The trial court has great discretion in sentencing within the statutory limits. Id. The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.
In this case, the trial court made absolutely no mention of
The record reflects that the trial court ordered a pre-sentence investigation, and that the report recommended that Egana be placed in the “About Face Program” pursuant to
This assignment is without merit.
REMANDED.
CIACCIO, J., dissents.
CIACCIO, Judge, dissenting.
I respectfully dissent from the order remanding this case for an evidentiary hearing. I would affirm the defendant‘s conviction and sentence as I find that his assignments of error have no merit.