STATE of Louisiana
v.
Ronny J. RICARD.
Court of Appeal of Louisiana, Fourth Circuit.
*394 Hаrry F. Connick, District Attorney, Nicole Barron, Assistant District Attorney, Orleans Parish, New Orleans, Louisiana, Counsel for Plaintiff/Appellee.
Elizabeth W. Cole, Supervising Attorney, Christopher McNabb, Student Attorney, Alice R. Greenberg, Student Attorney, Tulane Law Clinic, New Orleans, Louisiana, Counsel fоr Defendant/Appellant.
Court composed of Chief Judge ROBERT J. KLEES, Judge MOON LANDRIEU, and Judge MICHAEL E. KIRBY.
KIRBY, Judge.
The defendant, Ronny Ricard, was charged by bill of information, in CDC # 366-276, with possession of cocaine, a violation of La. R.S. 40:967. All judges of the Orleans Parish Criminal District Court recused themselves from this and othеr cases against the defendant. The Louisiana Supreme Court appointed an ad hoc judge to preside over the defendant's cases. A jury found the defendant guilty as charged. He was subsequently found to be a second offender and sentenced to ten years at hard labor.
On September 22, 1998, a record was lodged in this court as 98-KA-2278, purporting to be the appeal record of CDC # 366-890. In fact, that record consists of a combination of entries relative to CDC # 366-890, a theft charge to which the defendant pled guilty, and CDC # 366-276, the possession of cocaine charge in which the defendant was found guilty. On February 19, 1999, a record was lodged in this court at 99-KA-0424 that contained some of the documents pertaining to CDC # 366-276. Considering that the trial, multiple bill, and sentencing transcripts for CDC # 366-276, the cocaine charge, were all erroneously contained in the record at 98-KA-2278, and further considering that counsel for the defendant filed a brief relative to the cocaine charge into that record, this court consolidated the two apрeals. This appeal involves only the cocaine charge.[1]
STATEMENT OF THE FACTS
On September 29, 1993, at around 7:30 a.m., Officers Harry O'Neal and Carl Kreider were patrolling an area of Airline Highway known for prostitution and drug activity. The officers noticed the defendant and some females, in what appeared to be a heated argument, near a car in the parking area of a combination food store and gasoline station. The officers stopped their marked car in front of the car where *395 the defendant was standing. When the officers approached, the defendant began walking away. As the defendant walked towards the open trunk, Officer O'Neal asked him to stop. When the defendant began to put his closed fist into his pocket, Officer O'Neal grabbed the defendant's hand and found he was holding a metal crack pipe containing white residue. Officer O'Neal noted, on cross-examination, that the hood of the car was not seen open.
Criminalist Daniel Waguespack was stipulated to be an expert in the analysis and identification of controlled dangerous substances. He testified that the residue from the metal pipe placed into evidence tested positive for cocaine.
The defendant testified that his car had a leaky hose that caused him to pull over near the gas station on Airline Highway. He further testified that he obtained a metal pipe from the ground near a dumpster and had hoped to use the pipe to fix his car's hose problem.
ASSIGNMENT ONE
The defendant argues that the trial court erred when it refused to allow the defendant to change out of prison pants, thereby undermining his constitutionally guaranteed presumption of innocence.
This Court recently reviewed the applicable law with regard to a defendant being tried in рrison attire:
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. State v. Spellman,562 So.2d 455 , 456 (La.1990); see also Estelle v. Williams,425 U.S. 501 ,96 S.Ct. 1691 ,48 L.Ed.2d 126 (1976). A reasonable delay is aрpropriate to accommodate a defendant's right to be tried in his own clothes and, moreover, works no hardship on the State. Id. When the defense objects before the jury is impaneled and the objection is not simply a dilatory tactic, then the State is not prejudiced by allowing a defendant the extra time to change to civilian clothing. State v. Leggett,363 So.2d 434 , 438 (La. 1978). The failure of a defendant to make a timely objection is sufficient to negate the presence of compulsion necessary to establish a constitutional violation. State v. Brown,585 So.2d 1211 , 1213 (La.1991) (quoting Estelle, supra at 513,96 S.Ct. at 1697 ).
State v. Johnson, 96-1943, pp. 3-4 (La. App. 4th Cir.4/16/97),
In the instant case, defense counsel timely requested, prior to voir dire examination, that the defendant be permitted to change out of Orleans Parish Prison (O.P.P.) pants. The trial court responded:
I've reviewed the slacks, and I do not find the pants to be so obvious prison decor, uniform, that would jeopardize the defendant. In fact, when I viewed the defendant's pants from four feet away, I didn't observe the outline of the O.P.P. letters and I would not have known it if it was not called to my attention. So I overrule your objection.
Thе trial court then instructed the minute clerk to have the sheriff obtain the pants when the defendant got back to parish prison to preserve as evidence as to the reason for its ruling. The record does not indicate if the pants were actually saved and put into evidence as requested by the trial court. However, the record contains no request from defense counsel that the pants be produced for this court's consideration of this assignment.
Whether or not the pants were readily identifiable prison attire is a question of fact better left to the trial court, which had the opportunity to view them, than to the reviewing court, which does not. Accordingly, *396 because the trial court did not find the pants to be obvious prison attire, this assignment is without merit.
ASSIGNMENT TWO
The defendant argues that the repeated improper comments of the prosecutor during rebuttal argument prejudiced the jury against his case. Specifically, the defendant argues that the prosecutor made arguments that were outside of the sсope of the evidence and appealed to the jury's prejudices.
As per La.C.Cr.P. art. 774, the scope of closing argument "shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.... The state's rebuttal shall be confined to answering the argument of the defendant." Nevertheless, a prosecutor retains "considerable latitude" when making closing аrguments. State v. Taylor, 93-2201, p. 19 (La.2/28/96),
The evidence indicated that the defendant was found in possession of a metal tube containing cocaine residue. The defendant testified that he only picked up the piece of pipe to repair a broken hose on the borrowed car he was driving. In rebuttal, the State extended the proven facts to assume that the defendant's denial of his knowing possession of cocаine was a denial of his drug problem. In that vein, the prosecutor made the following objectionable remarks:
When people refuse to accept responsibility for a drug problem, it gets worse, it gets complicated and in a lot of instancеs in this city people end up dead.
The court sustained the defense's objection and instructed the jury to disregard that comment as "not part even [of] deliberation. Certainly not part of the evidence."
The prosecutor later remarked:
But what I can tell you is that for Mr. Ricard to get helр with his problem because he is not willing to accept it, the only way to get him help is to give the judge the power to help him.
Again the court sustained the defense objection, stating "I think that's going to the (realm) of sentence, which will be my exclusive problem, not yоurs."
The prosecutor gave the argument one final shot, as follows:
Mr. Ricard will not accept his responsibility for his problem. I'm asking you to help him. He won't help himself.
Defense counsel objected, noting that the jury was not there to help anybody, but rather to determine if the facts support the State's case. The trial court sustained the objection and advised the jury to disregard the prosecutor's remarks. The court further stated: "I think that your duty as jurors will be explained by me to you. And it is to judge the facts to determine whethеr or not there is guilt or innocence based on the facts and evidence you heard."
Considering the court's admonishments to the jury, and further considering the uncontroverted evidence that the defendant was in possession of the cocaine pipе, and further considering the incredible testimony of the defendant, it is unlikely that the prosecutor's remarks in closing argument *397 influenced the jury or contributed to the verdict. This assignment is without merit.
ASSIGNMENT THREE
The defendant pro se argues that the evidence was insufficient to sustain the cоnviction. The standard of appellate review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
Ultimately, to support a conviction, the evidence, whether direct or circumstantial or both, must be sufficient under Jackson to satisfy any rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Sutton,
To support a conviction for possession of a controlled dangerous substance, the state must prove that the defendant was in possession of the illegal drug and that he knowingly or intentionally possessed the drug. La. R.S. 40:967; State v. Chambers,
The defendant does not contest the officers' testimony that he possessed a pipe, or the expert's opinion that the pipe contained cocaine residue. Rather, he reasserts his trial testimony that he was only using the pipe to fix his car, and did not know that the pipe contained cocaine residue.
Credibility determinations are within the discretion of thе trier of fact and will not be disturbed unless they are clearly contrary to the evidence. State v. Vessell,
For the reasons stated above, we affirm the conviction and sentеnce of defendant Ronny J. Ricard (CDC # 366-276,) for possession of cocaine.
AFFIRMED.
NOTES
Notes
[1] The records indicate that the appellant was prosecuted in cases numbered 366-880 and 366-890 at about the same time as the instant case. In case number 366-880, the appellant was found guilty of one count of possession with intent to distribute, pled guilty to a multiple bill, and was sentenced to serve fifteen years at hard labor under the bill, to run concurrently with the sentence imposed in 357-055 (theft case in which probation was revoked), 366-890 and 366-276. In case number 366-890, the appellant pled guilty to theft between $100 and $500 and was sentenced to serve one year at hard labor, concurrent with the sentences in, 366-880 and 366-890. The court probably intended that the sentence in case number 366-890 run concurrently with the sentence in 366-276; however, both the docket master and minute entry for that case state that the sentence in 366-890 is to run concurrently with the sentences in cases numbered 375-0555, 366-880 and 366-890.