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State v. Williams

Court of Appeals of Louisiana, Third Circuit

May 25, 2017

STATE OF LOUISIANA
v.
PERRY WAYNE WILLIAMS A/K/A PERRY WILLIAMS

         APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 11-0275 HONORABLE GLYNN ROBERTS, DISTRICT JUDGE, AD HOC

          Joseph L. Waitz, Jr. District Attorney Thirty-Second Judicial District Ellen Daigle Doskey Assistant District Attorney Thirty-Second Judicial District James Christopher Erny Assistant District Attorney Thirty-Second Judicial District COUNSEL FOR APPELLEE: State of Louisiana

          Peggy J. Sullivan COUNSEL FOR DEFENDANT/APPELLANT: Perry Wayne Williams

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.

          MARC T. AMY JUDGE

         The State charged the defendant with possession with intent to distribute a Schedule II controlled dangerous substance. In pre-trial proceedings, the trial court rejected the defendant's contention that his arrest was not supported by probable cause, denying the defendant's motion to suppress in this regard. Following a multi-day trial, a jury convicted the defendant of attempted possession of cocaine with intent to distribute. The trial court imposed a four-year sentence to be served at hard labor and imposed payment of costs of a pre-sentence report as a condition of parole. The defendant appeals. For the following reasons, we affirm the defendant's conviction, amend the defendant's sentence to remove the condition of parole, and affirm that sentence as amended. We further remand this matter, with instructions to the trial court to correct the minutes to reflect that amendment.

         Factual and Procedural Background

         Deputy John Cowan, then an officer with the Ferriday Police Department, [1]explained that, in February 2011, he "received information from a Vidalia officer that there was a subject that wanted to turn over his dealer in Ferriday." He testified that, "[a] couple of days after this phone call [he] met up with the guy that wanted to turn over his dealers; his name was [Ricky] Davenport." Deputy Cowan confirmed that this was the first time he had met Mr. Davenport.

         Deputy Cowan testified that, he thereafter met with Mr. Davenport, who telephoned the defendant, Perry Williams, among others, and that he "[u]ltimately arranged to - - to buy or purchase a hundred dollars worth of crack-cocaine." Deputy Cowan explained that he listened to the telephone call with the defendant as it was broadcast on the "speaker phone[.]" Thereafter, Deputy Cowan accompanied Mr. Davenport as a passenger in Mr. Davenport's vehicle as the two drove to the location identified on the call. The record indicates that the defendant was walking alongside the roadway at the time and that Deputy Cowan exited the vehicle after he identified the defendant.[2]

         Deputy Cowan explained that, upon leaving the vehicle, he drew a "Stinger"[3] and ordered the defendant to the ground. He testified that the defendant then "fumbled with his pockets" and then threw a plastic bag to the ground. Deputy Cowan explained that he recovered the bag, suspecting that the substance contained therein was "crack cocaine[4] in the very early stages of production[.]" He stated that he then placed the defendant "on the ground; place[d] him in handcuffs and he was Mirandized and taken to jail."

         The State initially charged the defendant with possession of a Schedule II controlled dangerous substance. However, by an amended bill of information in October 2015, the State charged the defendant with possession with intent to distribute a Schedule II controlled dangerous substance, a violation of La.R.S. 40:967(A)(1). Subsequently, the trial court considered the defendant's motion to suppress wherein he alleged that the evidence relied upon by the State resulted from an illegal search. The trial court denied the motion. Following trial, a jury convicted the defendant of attempted possession of cocaine with intent to distribute. The trial court subsequently denied the defendant's motion for new trial and motion for acquittal. The trial court thereafter imposed a sentence of four years at hard labor, with credit for time served.

         The defendant appeals assigning the following as error:

I. The evidence seized in this case was the result of an unlawful arrest. Thus, any evidence seized as a result of that arrest should have been suppressed. The Trial Court ...

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