FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA,
NO. 11-0275 HONORABLE GLYNN ROBERTS, DISTRICT JUDGE, AD HOC
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
J. Sullivan COUNSEL FOR DEFENDANT/APPELLANT: Perry Wayne
composed of Ulysses Gene Thibodeaux, Chief Judge, John D.
Saunders, and Marc T. Amy, Judges.
T. AMY JUDGE
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.
and Procedural Background
John Cowan, then an officer with the Ferriday Police
Department, 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.
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.
Cowan explained that, upon leaving the vehicle, he drew a
"Stinger" 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 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."
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.
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