State Of Louisiana VS Randy R. Carson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 1577 STATE OF LOUISIANA VERSUS 1 RANDY R CARSON On Appeal from the 22nd Judicial District Court Parish of St Tammany Louisiana Docket No 433 690 Division Honorable William J Burris Judge E Presiding Walter P Reed Attorneys District State of Louisiana Attorney Covington LA for and Kathryn Landry Special Appeals Counsel Baton Rouge LA Prentice L White Louisiana Appellate Project Attorney Baton Rouge Randy Randy R Carson LA R Carson Defendant Appellant St Gabriel LA BEFORE for Defendant Appellant In PARRO Proper Person KUHN AND McDONALD JJ Judgment rendered February 12 2010 PARRO J The defendant information with LSA R S one 40 967 C Randy R count of violation a of c10nazepam Count 4 guilty on all He moved for was a and Following Thereafter violation of Count 2 a possession of oxycodone Count a of count one appointment of appointed competent to proceed count of violation of LSA R S 40 969 a charges sanity commission one 40 967 C LSA R S Count 1 possession of hydrocodone count of one charged by amended bill of was possession of cocaine violation of LSA R S 40 968 C 3 Carson a C He possession of initially pled not sanity commission and sanity hearing he he withdrew his former found was pleas and on all counts pled not guilty and not guilty by reason a jury trial all counts charged by unanimous verdicts On on he found was guilty as each count he was sentences to run insanity Following concurrently with each other He now sentenced to five years of of a imprisonment at hard labor appeals contending that the trial court erred in accepting the verdicts because the defendant did not understand the difference between and wrong and because the verdicts were against the weight of the evidence He also contends that the trial court erred in because the defendant denying the motion for presented evidence that he schizophrenic who began having hallucinations medications In a of counsel at the reasons we pro se right was a trial diagnosed paranoid result of not as a new receiving his brief he contends he received ineffective assistance hearing on the motions for affirm the convictions and sentences new on trial For the following Counts 1 2 3 and 4 FACTS On June 10 infant Olivia While 2007 Brandie Peyton was driving a vehicle occupied by her daughter her sisters Chanelle and Priscilla and their friends Virginia and on Collins Boulevard Peyton was stopped at off of U S a red Highway 190 in St light waiting to turn she 2 Tammany Parish was rammed from behind by defendant defendant vehicle driven a was s driving by the defendant the vehicle She Peyton indicated she did not parking lot of a He nearby Walgreens He offered to pay her for the police Terry Peyton another area unable to was but he alerted David Bordes 12 a local from the move the vehicle to He claimed he did get into trouble for a having it with firefighter to the defendant s respond to the firefighter not to the scene car because he was in accident Captain of Fire Patrol at the Northpark Station of Fire District responded to the When scene defendant the defendant stated Captain Bordes Look there s no went to check on the damage to any of the cars leave Captain Bordes told the defendant that he would have to wait for can we the run repeatedly asked Peyton not to call the Peyton alerted her husband Terry Peyton actions Peyton to damages to her vehicle not have his license and did not want to him anyone the vehicle The defendant exited his vehicle and told the see was sure police to arrive and file a report The defendant claimed that he had not been driving the vehicle during the accident Captain Bordes told the defendant that he would still have to wait for the police The defendant then claimed he needed to go to Walgreens to get water Captain Bordes told the defendant that the District Chief was on his way to the also told the defendant that defendant the car scene and he had drinks in his truck police officers were on Captain Bordes their way to the scene responded by moving certain items from the front passenger side of into the trunk Covington Police Department Officer Shane Maricelli responded scene The of the accident registered A check of the vehicle to the defendant through his car He was s registration indicated that it Officer Maricelli nervous and anxious saw the defendant complied with the order was rummaging Officer Maricelli ordered the defendant to step away from the vehicle and stand defendant to the near the trunk and the Officer Maricelli advised the defendant of his 3 Miranda the defendant indicated that he understood those rights and Officer Maricelli asked the defendant if he had defendant that he had been Peyton s I don t do No sir replied driving around Brillo and the accidentally run into the rear of vehicle a small black pad ten pills and 2 search of his vehicle a film claimed that the film canister was film canister contained cigarettes containing belonged to his mother a some cigarettes and The defendant He denied any knowledge pipes of the defendant asked that the s seen a man run vehicle after the accident police not be called from the inside of the car side of the defendant police s from the passenger side She indicated that the defendant She also saw to the trunk before the Olivia Schurb also claimed to have the defendant vehicle after the accident from the passenger She also heard the defendant not be called had suffered from mental illness since he whenever the defendant Kenneth also claimed that had s brother testified that the defendant was transportation although the vehicle really belonged to their mother sixteen years old he would was however that he had no 1 Miranda v Arizona 384 2 He claimed that give rides to people registered to the defendant it Additionally he claimed that their mother always pills together and kept them in the trunk of her evidence car He conceded concerning the medications prescribed to his The state and the defense s U 436 86 S Ct 1602 16 LEd 2d 694 1966 stipulated that two of the pills tested positive for hydrocodone ingredient six of the pills tested positive for oxycodone and one pill c1onazepam combined with another positive for moving items police arrived seen someone run Kenneth Brian Carson the defendant mixed her A search of the trunk under the passenger seat Chanelie Poche claimed to have ask that the The canister A box of Kool two rocks of crack cocaine of the crack a zipper bag containing eight crack pipes rolling papers condom a approximately tested car Thereafter the defendant stated drugs town and had The defendant consented to revealed anything illegal in the rights 4 mother He also conceded that the defendant had the their mother s pills for his personal opportunity to remove use SUFFICIENCY OF THE EVIDENCE In assignment of to establish that he establish that he the were in number 1 the defendant argues the state failed possession of the drugs drug bag He argues that contrary to the testimony that he welcomed strangers running from his was seen in the car and failed to insane at the time of the offenses that his mother welcomed into his vehicle moved the was was not jury verdicts person error strangers into the home that a and the absence of testimony that he car to the trunk Insanity at the time of the offense Insanity at the time of the offense requires mental disease between or right and mental defect the offender a was showing that because of incapable of distinguishing wrong with reference to the conduct in See LSA question R S 14 14 The law presumes LSA R S sanity defendant is art 652 sane and responsible for his actions The defendant has the burden of at the time of the offense insanity C Cr P 15 432 a The state is not by a to determination of whether the defendant s of the evidence LSA offer any proof of the defendant s to offer evidence to rebut the defendant or establishing the defense of preponderance required See evidence s evidence Instead the successfully rebuts the presumption of sanity is made by the trier of fact viewing all the evidence including lay defendant factual s and expert testimony actions in the conduct of the defendant committing the particular crime basis for both before and after the crime rejecting even may unanimous medical insane at the time of the offense insanity is a Lay testimony concerning defendant s question for the jury to decide actions The issue of and the State 5 v provide the jury with opinion that a defendant Thames 95 2105 La a rational was legally App 1st Cir 9 27 96 681 So 2d 480 486 writ denied 96 2563 In insanity reviewing we 99 S Ct must 2781 a L Ed 2d light 560 1979 At trial Dr Rafael Salcedo was not proven Virginia 443 U S 307 v whether accepted by a at trial police report concerning the from s self case on at least three different occasions report Dr Salcedo bipolar disorder and had indicated however that right from wrong defendant leave the s a an was someone effort to avoid else was apprehension and moving items from the passenger would were on their way area When or bipolar about that kind of behavior indicative of questioned about Salcedo stated Dr It were of his vehicle to the trunk support that he could distinguish right from wrong psychotic to driving the vehicle showed the defendant s police capable of distinguishing Dr Salcedo noted that the alleged offenses ability to distinguish right from wrong he realized the Dr Salcedo police involvement with the accident his efforts and his claim that in On the basis of the that the defendant suffered persuaded the defendant s once had listened to significant substance abuse problem at the time of the attempted concealment was in his view the defendant efforts to avoid scene scene concerning the incident and had encountered the defendant in connection with the defendant preponderance of the expert in forensic clinical as an incident had reviewed the statements of witnesses at the testimony viewing the Thames 681 So 2d at 486 He indicated he had reviewed the psychology to a defense of prosecution any rational trier of fact insane at the time of the offense was 691 So 2d 80 regard to determine most favorable to the could have found the defendant had evidence he in sufficiency of evidence apply the test set forth in Jackson 61 evidence in the claim of La 3 21 97 Yes And there is was an that nothing attempt to conceal evidence at face value After fact a thorough review of the record we are convinced a rational trier of viewing the evidence in the light most favorable to the prosecution could have found that the defendant failed to rebut 6 by a preponderance of the evidence his presumed sanity at the time of the offenses Possession of drugs The standard of review conviction is whether sufficiency of the evidence for uphold to a viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude the state proved the essential elements of the crime and the defendant crime beyond a reasonable doubt expressly mindful of Louisiana s In s identity as the perpetrator of that conducting this review we also must be circumstantial evidence test which states in part assuming every fact to be proved that the evidence tends to prove in order to convict reasonable hypothesis of innocence is excluded every Wright 98 0601 La App 1st Cir 2 19 99 99 0802 La So 2d 732 748 So 2d 10 29 99 1157 730 So 2d 485 and 00 0895 State v 486 writs denied 11 17 00 La 773 quoting LSA RS 15 438 When conviction is based a on both direct and circumstantial evidence the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable is thus viewed the facts to the established When the direct evidence prosecution by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for rational guilty juror to conclude beyond a controlled Schedule IV controlled Schedule III D dangerous substance LSA RS 40 967 dangerous substance Schedule II A in Wright l d 4 III as Hydrocodone is See a Cocaine is Schedule 7 III D l c dangerous substance Schedule II See LSA R S 40 964 Schedule II A l o a See LSA R S 40 964 controlled dangerous substance controlled intentionally classified in Schedule II Schedule classified in Schedule II a or C 40 968 C and 40 969 C LSA RSAO 964 Oxycodone is as was 730 So 2d at 487 applicable here it is unlawful for any person knowingly to possess or reasonable doubt that the defendant of every essential element of the crime As III a a as and as classified Schedule classified in prior to amendment by 2008 La Acts No 67 9 1 a Constructive controlled a a person may be in mere presence in the area where narcotics association with the person who does control the located is insufficient to support Smith 03 0917 La App 1st Cir a depends the whether determining constitute on a peculiar 12 31 03 or not there is or drugs discovered the drug or mere where it is area State v case sufficient to possession Factors to be considered in defendant exercised dominion and control sufficient to possession include his knowledge that drugs where the the 868 So 2d 794 799 facts of each relationship with the person found area to control are drug drug if he a finding of constructive possession A determination of whether convict not it is in his or joint possession of willfully and knowingly shares with another the right However the substance if dangerous subject to his dominion and control regardless of whether Also a possession is sufficient A person is considered to be in constructive possession of physical possession as 9 required to show actual possession of drugs by is not defendant in order to convict it is controlled dangerous substance See LSA RS 40 964 Schedule IV B classified in Schedule IV The state Clonazepam is were to be in actual were his possession found evidence of recent drug in the use area access to and his his the physical proximity to the drugs Smith 868 So 2d at 799 After thorough a trier of fact review of the record we are viewing the evidence presented in this favorable to the state could find that the evidence doubt and to the exclusion of every reasonable the elements of possession of cocaine clonazepam and the defendant s identity The as case a most reasonable hypothesis of innocence all of hydrocodone the rational light in the proved beyond a oxycodone and perpetrator of those offenses jury rejected the defendant s theory that the drugs in the trunk belonged to his mother and the crack the convinced that scene pipes and cocaine belonged to This court will not assess the 8 a stranger who fled credibility of witnesses or reweigh the evidence to overturn accept in or determination of guilt The trier of fact may part the testimony of any witness a determination of the 691 So 2d 1365 App 1st Cir 3 27 97 10 17 97 701 determinations So 2d were See State appellate Moreover credibility of the witnesses the matter is weight of the evidence not its sufficiency of the them s conflicting testimony about factual matters the resolution of which depends upon La fact finder reject in whole or when there is one a court 1331 1368 Lofton writ denied cannot we v say errs 06 0207 La 11 29 06 96 1429 97 1124 that irrational under the facts and circumstances Ordodi v Further State the La jury s presented to 946 So 2d 654 662 An by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning verdict and the basis of on an exculpatory hypothesis of innocence presented the rationally rejected by 1 21 09 1 So 3d 417 418 This State jury Calloway v 07 2306 a to La per curiam assignment of error is without merit MOTIONS FOR NEW TRIAL In erred in assignment of error number 2 the defendant argues that the trial court denying the motions for medications resulting in him new trial because he was denied his psychiatric being unable to assist his attorney in preparing a defense Prior to a new the trial sentencing the defendant pro se and defense counsel moved for arguing that the defendant had been denied his daily medication of antipsychotic drug Risperdal for six days before trial The defendant testified at the had been on on the motions Risperdal for over a year prior to trial but during the week of trial medication hearing he was He claimed that angry at trial as a raised his voice denied the medication result of not and attorney in his defense because he did not trust him 9 was He claimed that he was receiving his unable to assist his He offered a two page during trial alerting the court to the document which he claimed he had filed denial of his medication Demory Inglese St Tammany Parish Sheriff s Office Medical Dr Richard also testified at the Director defendant because the defendant Dr requests Inglese Dr hearing had very familiar with the was completed profusion a of sick call Inglese indicated that for the period covering the defendant s trial approximately the last week of October 2008 review of the defendant a s file did not reveal that he had filed any sick calls related to any mental health issues Further the medication administration record for the defendant indicated that he had been Inglese given Risperdal during the time period at issue indicated that when he had seen Dr Additionally the defendant in connection with other complaints he had made before during and after trial the defendant s thoughts were clear showed or ordered absolutely and no Dr organized evidence that he Inglese indicated that the defendant was psychotic or manic in any way shape form Dr present at the defendant s trial any nonverbal behavior display He indicated that while he Salcedo also testified at the hearing on October 31 trial new second page of the two page document offered that the defendant was not on added to page at pointed some later time signed by him that the defendant had but to his medications manufacture manufacture his Initially a was not in by the defendant which stated was not part of but had been Inglese had by the defense which if authentic fact propensity not only documents The court noted that the The court also noted that Dr out that one of the documents offered would have been the defendant did not suggestive of any psychiatric issues The court denied the motions for one 2008 was signed by him to have the manufacture records The court found ability to assist counsel to malinger and to psychiatric stance we note the claim at issue 10 was filed under the provisions of LSA C Cr P 851 5 art granting a new LSA C Cr P assertion that the trial court erred by not the basis that the ends of justice would be served thereby However trial on 851 5 art an court to review presents nothing for this Walder 504 So 2d 991 994 La State v writ denied 506 So 2d 1223 La App 1st Cir 1987 Moreover the trial court did not abuse its discretion in for The trial new contradicted defendant s claim that he by his medical records and Dr Salcedo and Inglese manufacture documents to This assignment of was was denying the motions denied medication inconsistent with the was rendered was testimony of Dr suspect by the defendant s attempt to support the claim error is without merit INEFFECTIVE ASSISTANCE OF COUNSEL In his pro se brief the defendant claims that defense counsel the motions for hearing on records and thus new inadequately trial cross did not have the defendant examined Dr State v proceedings unless the record Miller 99 0192 La 9 6 00 permits definitive resolution developed by the United attorney s performance States counsel made errors so was serious appeal analyzed under the two pronged Supreme Court in attorney was ineffective the defendant that the on post cert denied 531 U S Washington 466 U S 668 104 S Ct 2052 80 L Ed 2d 674 to establish that his trial to 2001 A claim of ineffectiveness of counsel is test generally relegated 776 So 2d 396 411 1194 121 S Ct 1196 149 LEd 2d 111 medical s Inglese A claim of ineffective assistance of counsel is conviction at the deficient which that he was not reqUires Strickland 1984 v In order must first show showing that a functioning as counsel guaranteed by the Sixth Amendment Secondly the defendant must prove that the deficient performance prejudiced showing that the errors were so the defense This element serious that the defendant 11 was requires a deprived of a must prove actual prejudice before relief will be fair trial the defendant granted It is not sufficient for defendant to show that the conceivable effect that but for probability the outcome of the on the counsel unprofessional s State components writ denied 614 So 2d 1263 another constitute Allen v writ denied an La 3 15 96 La strategy decisions requires possibly be reviewed defendant on App an appeal Further it is 859 60 on one La of the 1st Cir App on cross examination of Allegations of ineffectiveness relating to pursue one line attack upon 94 1941 95 2946 inadequate showing questions to ask if any by counsel reasonable a La 1993 strategy decision was a the choice made State is performance and prejudice Serigny 610 So 2d 857 v The decision of which Inglese an s some he must show the outcome of the trial would have been different to the defendant if the defendant makes Dr there errors unnecessary to address the issues of both counsel 1992 Rather proceeding had error a of defense as opposed 1st Cir 11 664 So 2d 1264 9 95 669 So 2d 433 evidentiary Further hearing3 under The investigation of therefore cannot adversary system our and 1271 once a the vast array of trial decisions strategic and tactical which must be made before and during trial rest with attorney The fact that a La This appellate an particular strategy is unsuccessful does not establish ineffective assistance of counsel 59 71 to strategy decision made by trial counsel has the assistance of counsel accused and his to State v Folse 623 So 2d App 1st Cir 1993 assignment of error is without merit or otherwise not subject to review CONVICTIONS AND SENTENCES ON COUNTS 1 2 3 AND 4 AFFIRMED 3 The defendant would have to order to receive such a satisfy the requirements hearing 12 of LSA C Cr P art 924 et seq in
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