STATE OF LOUISIANA VS TORORES LEE

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2005 KA 2435 STATE OF LOUISIANA VERSUS HERBERT W MURRAY Judgment rendered 99 On Appeal from the 23rd December 28 2006 Judicial District Court Parish of Assumption State of Louisiana No 03 64 The Honorable Thomas J Kliebert Jr Judge Presiding Arthur L Harris Sr Counsel for Appellant New Orleans LA lIerbertVV Murray Anthony G Falterman District Attorney Anthony T Marshal Counsel for Appellee State of Louisiana Donald D Candell Assistant District Attorneys Gonzales LA BEFORE PETTIGREW DOWNING AND HUGHES JJ DOWNING J The Herbert defendant information with with intent possession dangerous substance cocaine possession with intent 1 substance marijuana convicted felon a a firearm a 14 95 1 violation of La R S 14 95 E informant and trial his court not a was making On the to ten 10 years at hard labor be without benefit to sentence for the conviction of 1 8 eight at years possession of sentence and felon 1 8 controlled was cocaine a at years The defendant substance nol a possessing eight a or carrying a the hearing intended to a the appeal him The defendant with the first two years with intent a to or suspension count 2 probation parole or being concealed weapon or of the of distribute cocaine marijuana hard labor without benefit was 1 000 00 fine for the 1 000 00 fine for the conviction of firearm guilty not Boykin hearing the defendant distribute to pled The defendant informed the hard labor and years at hard labor without benefit of 12 a probation parole of conviction of possession with intent of weapons day of trial the defendant withdrew Following to suppress a a Following Crosby plea and that he a being identity of the confidential plea of guilty a sentence count reveal the dangerous concealed weapon a The defendant guilty of the four charges against found sentenced 1 count 1 count 2 1 illegal carrying suppress the evidence guilty plea and entered denial of the motion was to to carrying and count 4 denied the motions court that he schedule I Gontrolled or count 3 motion motion violation of La R S 40 967 A a of schedule II controlled a violation of La R S 40 966 A violation of La R S a charged by bill was distribute to distribute to possessing The defendant filed Murray W a twelve suspension convicted count 3 probation parole and or charged with one count of possession of a schedule II controlled dangerous violation of La R S 40 967 C and one count of distribution of a schedule II also a dangerous substance prossed by the State cocaine a violation of La R S 40 967 A 2 1 Both ofthese counts were suspension of sentence carrying of weapons counts ordered the run reconsider sentence designating The 2 count which of The court further each other count 4 to run concurrently with the The defendant filed only denied was assignments six to consecutively illegal ordered the sentences received for court received for sentence received for sentence 1 000 00 fine for the conviction of a count 4 2 and 3 to 1 and The defendant motion now to appeals affirm the convictions and We error a sentences FACTS Because the defendant at a The factual basis for the trial during the Boykin hearing is On pled guilty the facts or as about March 15 were not fully developed guilty plea provided by the prosecutor follows in the Parish of 2003 Assumption search warrant officers of the Louisiana State Police executed on the residence of Herbert Murray Officers found Murray in a the of 54 possession of grams dangerous substance with intent a to schedule II controlled distribute to wit cocaine of 54 grams of a schedule I controlled dangerous substance with intent to distribute to wit marijuana and possession possession in sic of several firearms after July 7 1993 number 930324 being convicted of in State of California and while being in a bearing felony docket possession of controlled dangerous substances ASSIGNMENTS OF ERROR NOS 1 In his first two erred in assignments of Crosby suppress did not the defendant argues the court denying his motion for recusal of the trial judge When the defendant to error 2 he intended See State reserve for v pled guilty to appeal he informed the the court s court denial of the motion Crosby 338 So 2d 584 La 1976 appellate review any other Accordingly the defendant has failed 3 to that pursuant reserve specified his right to The defendant pre to plea error appeal the court denial of the motion for recusal of the trial s 2003 315 16 5 03 Garcia 519 So 2d 788 791 La Joseph La 847 So 2d 1196 See State judge curiam per v State v writ denied 530 So 2d App 1st Cir 1987 85 La 1988 assignments of error are without merit These ASSIGNMENTS OF ERROR NOS 3 4 In these was confidential informant v used not was a to participant at the defendant divulge the an divulged and the drug buy the search erred in the warrant in an was residence s name of a a As a confidential illegal drug transaction State 1st Cir 1984 App La dIUg buy name evidence that exception is made when the contends that since the confidential informant controlled court by the Assumption Parish Sheriff s Office required 452 So 2d 1313 Buffington to suppress the motion However the accused to the search of of the confidential informant used identity cocaine from the defendant general rule the State is informant at the established was purchase to drug buy confidential informant to the evidence seized pursuant motion to reveal the in the controlled It to suppress Specifically the defendant contends that the his residence denying his the defendant argues the court elTed in assignments of error denying the motion 5 the was source of the confidential a of The defendant participant probable informant in the cause for must be 3 2 Moreover there was no pre for recusal of judge which record the defendant filed defendant filed untimely an Finally denied the motion not have 3 plea ruling by the court to preserve for appeal The defendant s flIstmotion filed July 7 2004 was never ruled on by the court It appears from the was a motion for continuance seeking amended motion for recusal of judge on July 15 However jurisdiction on July 2005 the court held the order of appeal 15 2005 to rule on was a on more time to investigate the recusal issue The November 12 2004 which the court denied as hearing entered the motion to on on the defendant June 20 2005 recuse s motion to Therefore recuse and the court did See La Code Crim P art 916 the The defendant maintains that the confidential informant may not have been trustworthy e g belonged to the confidential informant or that he may have been a fiction ofthe police confected cocaine to provide a basis for a search warrant they could not otherwise obtain 4 Other than the baseless allegations The defendant enforcement officers that correct IS the information warrant to search the defendant case based s residence 4 probable as However the charges in this the evidence seized in the search of the defendant s on his brief to informant And then you set up A Yes sir How many A One controlled buys some were done buys Well two attempted one was successful the purchase made from Q Okay A The successful purchase was made from Mr Murray Q Okay And who were you working with as far as all the other officers who were involved A I was working with Capt B J Roque Agent Hayes Coddou Tpr Craig Rose Tpr Travis was And who was Columbell Sgt Dana Harrison Q Okay And was the CI reliable in the past A Yes he was Q Okay A He was Q an Assumption Parish A He CI purchase by himself or was And also did the CI make the monitored by a cover team Q Okay And prior to the CI beginning the attempt to A Yes sir And did he have any contraband A No sir he didn t And was Q Okay A Yes sir Q Yes sir a on constant contact And after the CI left Mr buy was he searched his person kept with the CI during the entire attempt We had audio transmission on him as soon as A Yes Q by a coverteam was Q kept he monitored to buy process from him the entire time coming Murray s residence constant contact visual contact was a he left the residence sir Was he able to go anywhere else other than meeting up with the officers A No sir Q When he met back with the officers after leaving possession A He had approximately Q And Okay was that Mr Murray s home what did he have in his two grams of suspected cocaine cocaine taken from the CI A Yes sir Q Was it placed into evidence A Yes sir The person you called this confidential informant had you received information at other times from that person credible and reliable information that you were previously able to use Q before A 4 Capt B J Roque and Agent Hayes Coddou had used him several times before Trooper Landry testified Q Isn t it so that the on the A affidavit Yes was to at the motion to suppress reason seek a for including as follows the information search warrant is that regarding this confidential informant not true ma am That affidavit Q Murray s residence A However to presented isn t that the Judge in order to get a search warrant to search Mr right Yes ma am Q was controlled buy by affidavit to support A Yes to your affidavit you indicated that there was a informant and you used that information to include in an confidential you used the a a according search warrant am I correct ma am 5 s State Police follows Q Q law for the search cause regarding the confidential informant s trustworthiness the defendant provides nothing in On the contrary the record clearly establishes the confidential support his position At the motion to suppress hearing Trooper Cy Landry of the Louisiana trustworthiness testified to by the confidential informant regarding his drug transaction with the defendant established the were provided residence not on the evidence seized from the controlled the confidential informant and the defendant did not played subsequent search Cir 6 28 05 6 See State Clark 2005 61 v 909 So 2d 1007 1015 1016 06 925 So 2d 538 See also State 568 La 1978 Jackson 4 26 95 State v 654 So 2d 819 823 confidential informant s Other than App 5th 2005 2119 La 362 So 2d 566 567 La 95 1281 App La 13 10 4th Cir 95 661 Trooper Landry testified about the informant play role any In the warrant establishing the probable for any other reason in the A La 13 14 7 8 pp and the warrant limited role execution of the search A No sir No sir Q Diliberto v writ denied Did the confidential Q pp writ denied 94 1500 At the motion to suppress 495 led to the defendant s arrest part in the execution of the search no 17 3 cause was the CI used case No sir Accordingly the State confidential informant 5 The confidential informant playa crucial role in the transaction that because he 2d So 5 drug buy between was not The court to required did not err divulge the in denying the defendant name of the s original charges against the defendant However the two drug buy possession of cocaine original count 2 and distribution of cocaine were nol prossed At the motions hearing which included the defendant s motion to The bill of information contains the six charges based on count 5 original reveal the identity the of the confidential informant and the motion to suppress the evidence the prosecutor nothing to do with the charges the defendant was informed the court that the confidential informant had with Your Honor the second set of motions will be a Motion to Reveal Identity ofInformants and Reveal the Deal Your Honor there is no deal and informants were not used as part of presently being charged that Mr Murray is anything charged attention of the defendant that the pursuant to so During the only charges against motion to suppress it was again brought to the were those based on the evidence found him the search ofhis residence The Court warrant He correct prosecutor s only being charged with the evidence that That s what you re saying That s correct That Prosecutor The State is not Following with the court s what Im s going saying was found as a result ofthe search Your Honor forward with Count 5 ofthe Bill ofInformation denial ofthe motion to suppress the prosecutor informed the court that he was going nol prosse count 5 distribution of cocaine Although count 2 possession of cocaine was also dropped as one ofthe the defendant it is not clear from the record when the prosecution nol prossed charges against this count At the guilty plea the defendant pled guilty to the four remaining counts against him These to counts related to the evidence residence arraignment 6 namely and drugs that was discovered pursuant to the search ofhis 5 were not part of the defendant s re dropped counts 2 weapons and The other two counts that were subsequent guilty plea In his brief the defendant does not raise any issue search warrant affidavit 6 regarding the contents of the search warrant or the reveal the motion to did not err identity of the confidential informant Further the denying the defendant in s motion to suppress court the evidence assignments of error are without merit These ASSIGNMENT OF ERROR NO 6 In his sixth assignment of erred in denying his motion The defendant the was to motions sentence motion were reconsider sentenced sentencing hearing the to court on sentence infliction of pain and a court sentence May 17 2005 At the conclusion of advised defense counsel that all be filed in reconsider the defendant argues the trial error timely fashion June 17 2005 post The defendant filed a alleging excessiveness and suffering to In felony sentence the La state cases within such or thirty one on This thirty days following the imposition of longer period art 881 1 A as or the trial file court may set at sentence motion a to reconsider The defendant s motion l days following the imposition of the defendant is Accordingly sentence within the defendant may make or Code Crim P filed on precluded from sentence urging was sentence which was untimely 7 his claim of excessive appeal assignment of error is without merit DECREE For the foregoing reasons we affirm the defendant s convictions and sentences CONVICTIONS AND SENTENCES AFFIRMED 7 June 16 2005 review of La R S the last day on which the defendant s filing would have been timely was a Thursday A 1 55 and the Louisiana District Court Rules indicates that June 16 is not a holiday in Assumption Parish 7 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 KA 2435 STATE OF LOUISIANA VERSUS HERBERT WAYNE MURRAY tJJ HUGHES J I respectfully sentence disclosed concur and in my as with the result although I am concerned that imposed in contravention of Code of Criminal Procedure was article 673 concurring a opinion the confidential participant finding of probable cause consider the excessive although the C for the search sentence issue informant should have been r was walTant not necessary to the I would also at least

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