State v. Riley

941 So. 2d 618, 2006 WL 3042154
CourtLouisiana Court of Appeal
DecidedSeptember 20, 2006
Docket2005-KA-1311
StatusPublished
Cited by11 cases

This text of 941 So. 2d 618 (State v. Riley) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Riley, 941 So. 2d 618, 2006 WL 3042154 (La. Ct. App. 2006).

Opinion

941 So.2d 618 (2006)

STATE of Louisiana
v.
Gary RILEY.

No. 2005-KA-1311.

Court of Appeal of Louisiana, Fourth Circuit.

September 20, 2006.

*619 Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.

Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).

DAVID S. GORBATY, Judge.

On May 26, 2004, Gary Riley was charged with one count of possession of heroin. At his arraignment on May 28, he pled not guilty. The court heard and denied his motion to suppress the evidence on July 16. The court reset trial several times, until March 21, 2005, when a twelve-person jury found him guilty as charged. On May 15, the defendant orally moved for a new trial and for reconsideration of the verdict, and also filed written motions for an appeal, for reconsideration of sentence, and to quash the multiple bill. The court noted that a multiple bill had not yet been filed, and thus the motion to quash it was premature. The court also denied the oral motions for new trial and to reconsider the verdict, and it noted that the motion for appeal would be granted "in due course." The court then sentenced Riley to serve ten years at hard labor. The minute entry of sentencing notes that the court denied the motion to reconsider Riley's sentence. Defendant subsequently filed this appeal.

FACTS

Officer Bryan Bordes testified that he and his partner Officer Rashi Reed arrested the defendant Gary Riley on May 16, 2004. The officers were on patrol in the 3600 block of Thalia Street in the B.W. Cooper housing project, an area known for loitering and drug activity, when they saw Riley stooping near a building in the project. Off. Bordes testified that when Riley saw the officers driving near him, he got up and ran into a hallway of the project. The officers exited their car, and Off. Reed chased Riley into the hallway and up some stairs. Off. Bordes stated that Off. Reed apprehended Riley, handcuffed him, and took him back down the stairs to the police car. Once there, the officers ran Riley's name and discovered there was an outstanding warrant for his arrest. The officers contacted N.C.I.C. and verified that the warrant was still outstanding. They then arrested Riley and advised him of his rights, and Off. Bordes quickly searched Riley's outer clothing, finding nothing.

*620 Off. Bordes testified that before putting Riley into the police car, he checked the back seat and saw nothing on the seat. Off. Bordes stated that the officers then drove Riley to Central Lockup. On the way, the officers could see Riley squirming in the back seat of the squad car. Once at the lockup, the officers saw Riley discard something onto the back seat while exiting the car. Off. Bordes retrieved the object, which was a plastic bag containing four foil packets. The officer opened the bag and found powder inside the foil packets. Believing the substance in the packets to be heroin, the officers then arrested Riley for possession of heroin.

On cross-examination, Off. Bordes admitted he did not remember whether Off. Reed handcuffed Riley while still upstairs or until they had come back downstairs. He also was unsure if Off. Reed frisked Riley for weapons while still upstairs or after they had returned downstairs. Off. Bordes also did not remember if the officers went straight to the lockup after arresting Riley or if they made a stop at a police substation before going to the lockup. He did not remember where the officers completed their paperwork. Off. Bordes testified that it was the officers' usual policy to search the back seat of the police car when they started their shift, as well as before and after transporting suspects in the back seat.

Off. Rashi Reed also testified that he and his partner routinely checked the back seat of the police car at the beginning of their shift, again before placing a prisoner in the back of the car, and once again at the end of the shift.[1] He testified that Riley was the first person they placed in the back seat that day. He stated that they arrested Riley once the outstanding warrant was verified, and his partner searched Riley but found nothing. They put Riley in the back seat of the squad car. On the way to the lockup, they saw Riley squirming in the back seat. Once there, as they were removing Riley from the back seat, Off. Reed saw Riley drop a small bag on the seat. While Off. Reed held Riley, Off. Bordes retrieved the bag, which contained four foil packets containing what appeared to be heroin. The officers then arrested Riley for possession of heroin.

On cross-examination, Off. Reed testified that he first saw Riley standing next to the corner of a building in the housing project. He testified that when Riley ran, he chased Riley to the third floor. He apprehended Riley on the third floor, frisked him for weapons, handcuffed him, and took him back downstairs. He testified that the officers ran Riley's name and discovered the outstanding warrant. They arrested him and advised him of his rights, and his partner searched him. Off. Reed testified that after putting Riley into the back seat of the car, they drove to a nearby police substation to get a supervisor to sign the outstanding warrant and an affidavit for trespassing because Riley did not live in the housing project where the officers arrested him. Off. Reed stated that he did not remember whether the officers took Riley inside the substation while getting the warrant signed. They then took Riley to the lockup, where he discarded the heroin. Off. Reed testified that there may have been an hour's gap between the arrest and Riley's booking at the lockup because Off. Reed may have completed his paperwork in the police car prior to taking Riley inside for booking.

The parties stipulated that Off. "Sam" Nohn V. Hoang was an expert in the *621 chemical analysis and identification of controlled dangerous substances. Off. Hoang testified that he tested the substances in the foil packets, and the powder inside the packets tested positive for heroin.

ERRORS PATENT

A review of the record reveals that the trial court denied the appellant's motions for new trial and to set aside the verdict and then sentenced him on the same day without observing the twenty-four-hour delay mandated by La.C.Cr.P. art. 873. There is no indication in the transcript of sentencing that the appellant waived this delay. However, this error is not fatal to the sentence for two reasons. First, as per La.C.Cr.P. art. 852, a motion for new trial or in arrest of judgment must be in writing. At the sentencing hearing, defense counsel admitted he did not have written motions and was filing only oral motions, to be supplemented with written motions. There is no indication in the record, however, that counsel filed written motions for new trial or in arrest of judgment. Moreover, as per State v. Collins, 584 So.2d 356 (La.App. 4 Cir.1991), the failure to observe the twenty-four-hour delay mandated by La.C.Cr.P. art. 873 is harmless where the defendant does not complain of his sentence on appeal. See also State v. Wheeler, 04-0953 (La.App. 4 Cir. 3/9/05), 899 So.2d 84. Here, the appellant is not challenging his sentence on appeal. Thus, any failure to observe La. C.Cr.P. art. 873's delay is harmless.

There are no other patent errors.

DISCUSSION

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Cite This Page — Counsel Stack

Bluebook (online)
941 So. 2d 618, 2006 WL 3042154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-riley-lactapp-2006.