STATE OF LOUISIANA Vs. LEIGHTON COMRIE
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA * NO. 2016-KA-0081 VERSUS * COURT OF APPEAL LEIGHTON COMRIE * FOURTH CIRCUIT * STATE OF LOUISIANA ******* APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 511-947, SECTION “D” Honorable Calvin Johnson, Judge ****** Judge Dennis R. Bagneris, Sr. ****** (Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome) BELSOME, J., DISSENTS WITH REASONS Leon A. Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney PARISH OF ORLEANS 619 South White Street New Orleans, LA 70119 COUNSEL FOR APPELLEE, STATE OF LOUISIANA Powell W. Miller LOUISIANA APPELLATE PROJECT P.O. BOX 4121 New Orleans, LA 70178-4121 COUNSEL FOR DEFENDANT/APPELLANT, LEIGHTON COMRIE AFFIRMED; MOTION TO WITHDRAW GRANTED JUNE 15, 2016 In this appeal, Leighton Comrie appeals his conviction and sentence for possession with the intent to distribute marijuana, requesting only a review of the record for errors patent. Because such review reveals no errors that require this court’s action, we hereby affirm Mr. Comrie’s conviction and sentence. Further, we hereby grant the motion to withdraw on behalf of counsel for Mr. Comrie. STATEMENT OF CASE The State of Louisiana charged Leighton Comrie on June 4, 2012 with one count of possession with the intent to distribute marijuana, a charge to which he pled not guilty on July 13. On October 19, 2012, the court heard and granted his motions to suppress the evidence and statement. On that date, Mr. Comrie waived his right to a jury trial. The State sought review of the court’s suppression rulings, and this court reversed. State v. Comrie, unpub., 2012-1621 (La. App. 4 Cir. 1/9/13). Mr. Comrie waived his right to a jury and proceeded to trial on March 11, 2013, at the conclusion of which the court found him guilty as charged. Mr. Comrie waived all delays, and the court sentenced him to five years at hard labor, 1 suspended, placed him on two years active and three years inactive probation, and fined him a total of $4000.00. On December 16, 2013, the court granted Mr. Comrie an out-of-time appeal. The appeal record was lodged in this court on January 25, 2016. Counsel for Mr. Comrie filed a brief on his behalf on February 19, 2016, requesting a review of the record for patent errors only.1 FACTS Mr. Comrie was arrested on March 28, 2012 and charged with possession with the intent to distribute marijuana. At his trial, Detective Erica Jones testified that on that afternoon, she had set up a surveillance of the area of N. Dorgenois and St. Phillip Streets, an area known for high narcotics activity. She observed an unknown man and woman walk into the intersection, look around, and then walk down Dorgenois toward Dumaine Street. She followed the pair and saw the woman approach another woman who was sitting on the porch at 2608 Dumaine. The two women spoke briefly and then went inside the residence, while the man remained outside. A minute or two later, the women left the residence, and while the resident remained on the porch, the unknown woman reunited with the man, and they began walking away. Det. Jones testified that she suspected that the women had engaged in a narcotics transaction, and as she started to follow the man and the woman as they walked away, she saw a blue Honda pull up to the residence. The back passenger got out of the car and walked up to the woman on the porch. Because she had already pulled out, Det. Jones circled the block, and when she returned, the Honda 1 This court notified Mr. Comrie at his last known address that he had the right to file a pro se brief, but he has failed to do so. Thus, this court is limited to a review of the record for patent errors. 2 had already pulled away. Suspecting that the rear passenger had also engaged in a narcotics transaction, Det. Jones called for her takedown team to stop the Honda, which they eventually did. She stated that her takedown team arrested Mr. Comrie, the front seat passenger, and transported him, the driver, and the back seat passenger to the First District station. Once there, after typing an application for a search warrant for 2608 Dumaine, she spoke with the three suspects. She testified that while the driver and the rear passenger denied any knowledge of marijuana that was found in a box lying on the front passenger seat floorboard, Mr. Comrie admitted that the marijuana was his, and he maintained that the others did not know it was in the car. Mr. Comrie stated that the driver was merely giving him a ride, and they had stopped at the residence because the rear passenger’s “BabyMama” lived there. On cross-examination, Det. Jones admitted that she did not see Mr. Comrie exit the Honda at the residence. She stated that as the Honda passed in front of her at the corner, she saw that none of its occupants was wearing a seatbelt. She admitted that she had no information concerning Mr. Comrie engaging in drug sales. She opined that the amount of marijuana found in the box, one pound, was inconsistent with personal use. She described the box as a large U.S. Mail Priority box with black tape around it, and inside the box was a pound of marijuana wrapped in a plastic bag. She admitted that she saw no exchange between the rear passenger and the woman on the porch, nor did she see either of them with the box. Detective Sherife Davis was in the takedown unit that stopped the Honda. She stated that she and her partner first saw the Honda on Broad Street, and the driver appeared to be speeding and was weaving in and out of traffic without using any turn signals. She stated that the occupants were not wearing their seatbelts. 3 She identified a traffic citation issued to the driver, which listed three counts of no seatbelts and one count of having a cracked windshield. She stated that she and her partner eventually stopped the Honda when it exited the Interstate at Franklin Avenue. Det. Davis testified that while her partner walked up to the driver, she walked up to the front passenger and encountered Mr. Comrie. She advised him of why the car was stopped and asked him if he had any weapons. When he replied that he did, she asked him to step out of the car and asked him where the weapon was. He replied that it was in his pocket, and she asked him to retrieve it. He then pulled a knife from his pocket. As they were speaking, she could smell the odor of fresh marijuana coming from Mr. Comrie. She advised Mr. Comrie of his Miranda rights, which he acknowledged that he understood. She stated that she saw the box lying on the floorboard where Mr. Comrie had been sitting, and she asked him how much marijuana he had in the box. He replied: “A lot.” She asked: “How much is a lot?” He responded: “A pound.” She identified the box, which had been shipped from California to Thomas Sinclair at 1800 Baronne Street. Det. Davis admitted that none of the men in the Honda was named Thomas Sinclair. She also identified the marijuana found inside the box. Based on her years of experience and number of narcotics arrests, Det. Davis testified that the amount of marijuana found in the box was not consistent with personal use. Det. Davis testified that they arrested Mr. Comrie for possession with the intent to distribute marijuana and detained the other two men, transporting all three to the First District. She interviewed the men once they arrived. The driver and the rear passenger denied any knowledge of the marijuana. Mr. Comrie admitted that the marijuana belonged to him, and he stated that the others in the car did not 4 know it was in the box. He signed a waiver form and gave a short written statement, in which he averred: “Yes the weed is mine. They did not know it was there.” She testified that Mr. Comrie also signed the bottom of his statement. While at the station, she performed a search incidental to his arrest and seized a total of $900 in various denominations. On cross-examination, Det. Davis testified that although she and her partner started following the Honda near the corner of Broad and Dumaine, they did not stop it immediately because they had called for backup. She stated that the Honda appeared to be speeding, but because they did not have access to radar, she could not tell how fast it was going. The Honda entered the I-610, and they stopped it when it exited at Franklin. She stated that while they were able at some point to see that the occupants were not wearing seatbelts, they did not see the cracked windshield until after they stopped the Honda. She admitted that the car contained no drug packaging paraphernalia, nor did she have any information at the time that she stopped the Honda that Mr. Comrie was involved in any drug activity. The State introduced the crime lab report that indicated that the substance in the box tested positive for marijuana, and it rested. The defense introduced a copy of the Louisiana Secretary of State’s webpage indicating Mr. Comrie has a limited liability corporation involved in a catering business; a flier showing the pricing for the items he sold; a business card for his business; and the 2010 income tax form for the business he shared with his wife. After argument, the court found Mr. Comrie guilty as charged of possession with the intent to distribute marijuana. 5 DISCUSSION By his sole assignment of error, Mr. Comrie requests a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), as interpreted by this Court in State v. Benjamin, 573 So. 2d 528 (La. App. 4 Cir. 1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La. 12/12/97), 704 So. 2d 241. Counsel's detailed review of the procedural history of the case and the facts of the case indicate thorough reviews of the record. Counsel moved to withdraw because he believed, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed the record and found no trial court ruling that arguably supports the appeal. As per State v. Benjamin,2 this court has performed an independent, thorough review of the pleadings, minute entries, and the bill of indictment in the appeal record. Mr. Comrie was properly charged by bill of information with possession with the intent to distribute marijuana, a violation of La. R.S. 40:966(A)(1), and the bill was signed by an assistant district attorney. Mr. Comrie was present and represented by counsel during arraignment, trial, and at sentencing. The judge’s verdict of guilty as charged is legal in all respects. Furthermore, a review of the trial transcript shows that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Comrie was guilty of possession with the intent to distribute marijuana. Mr. Comrie’s sentence is legal in all respects. 2 573 So. 2d 528 (La. App. 4 Cir. 1990) 6 The sole potential patent error in the record is the court’s failure to wait the mandatory three days between conviction and the imposition of sentence as set forth in La. C.Cr.P. art. 873, which a defendant may waive. In State v. Allen, 992368 (La. App. 4 Cir. 3/21/01), 788 So. 2d 62, this court found that the failure to observe the three-day delay set forth in La. C.Cr.P. art. 873 is subject to a harmless error review. See also State v. Joseph, 04-1240 (La. App. 5 Cir. 4/26/05), 901 So. 2d 590. At the conclusion of trial in the present case, after the court found Mr. Comrie guilty as charged, the court invited the attorneys to the bench to discuss sentencing. After the unrecorded bench conference, the court advised Mr. Comrie of the potential sentence he could receive and then imposed the minimum sentence. While there is no indication that Mr. Comrie waived the delay in sentencing, it is entirely possible that counsel indicated at the bench that Mr. Comrie was ready for sentencing. In addition, Mr. Comrie did not object to being immediately sentenced, and as he was given the minimum sentence, which the court then suspended, he does not raise any error as to sentencing. He also does not complain of the failure to observe the three-day delay. Thus, even if Mr. Comrie did not waive this delay, the failure of the court to observe the delay was harmless error. Because there are no patent errors in Mr. Comrie’s record that require this court’s action, we hereby affirm his conviction and sentence. Further, we hereby grant the motion to withdraw on behalf of counsel for Mr. Comrie. AFFIRMED; MOTION TO WITHDRAW GRANTED 7 8
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