State Of Louisiana VS Brandi Brown

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 KA 0368 fiW STATE OF LOUISIANA rpif VERSUS BRANDI BROWN Judgment Rendered September 14 2007 Appealed from the Twenty Third Judicial District Court In and for the Parish of Ascension Louisiana Trial Court Number 10 190 Honorable Alvin Turner Jr Anthony G Falterman District Donald D Attorney District Attorney Candell Assistant Judge Attorney for State Appellee Gonzales LA Attorney for Dwight Doskey Covington LA Defendant Appellant Brandi Brown BEFORE t1 CARTER C J PETTIGREW AND WELCH JJ WELCH J The defendant Brandi Brown first degree murder a was charged by 14 30 violation of La R S At the commencement of trial indictment with grand jury a The defendant not pled guilty the selection of jury the State amended the during original indictment and charged the defendant with second degree murder violation of La R S 14 30 1 trial court declared jury trial he hard labor a The jurors in this trial became deadlocked and the mistrial found was 1 The defendant guilty The defendant a charged as was retried and The defendant appeals designating now affirm the conviction amend the sentence as a sentenced to life assignments of error two and affirm was second following at We amended FACTS On February 20 1997 about 1 00 at at a m the Christine Prairieville Ascension Parish the defendant also known killed Gerald Henry also known testified at trial testified at Three other witnesses who trial that who shot him testimony talking to Henry defendant up entered testified that he Donald in the stomach a One eyewitness to Henry shortly spoke Rock Hard defendant in this approach Henry The defendant Hard a co Henry put his hands Henry 2 y Hem identified Rock Hard the to shooting before he died Hard Rock or shot and as the person 2 Jason Hill for his Turtle as as in Apartments was Ray was West who case at the was Christine Quack The defendant had was a granted complete immunity Apartments sitting also in Hill s car shotgun and told in his Hill y Hem to saw car the give it in the air From about two feet away the defendant shot Another person rearraigned on was with the defendant the amended charge of second Hill attempted degree to murder and plea of not guilty Of the witnesses who and one testified that spoke Henry to Henry said before he died two testified that Hard Rock 2 Henry said Rock drive away but the defendant and this unidentified person jumped in Hill s car The defendant told Hill to drive away Tyrus Jackson testified he knew at trial that he lived Jackson found Henry When Jackson asked Henry lying on at the Christine the ground Henry who shot him Henry replied Apartments and shot but still alive Rock Hard from China Town Brandy her that Shaheen who lived with Jackson testified at trial that Jackson told Henry had been shot When Shaheen approached Henry Henry said that he could not believe that Rock Hard shot him Captain Ward Webb3 with the Ascension Parish Sheriffs Office testified that he was dispatched to the scene When he approached Henry face down he asked him if he had been shot the stomach Captain Webb replied it who Henry replied he had was lying been shot in Rock Hard from China Town was then asked Major Benny Delaune4 at trial that he was defendant informed an area if he knew who shot him Henry with the Ascension Parish Sheriffs Office testified present during the booking process of the defendant of the officers that his alias one Major Delaune fmiher Gonzales Henry or akJa testified that the defendant lived known as on was The Rock Hard Bluebird Street in China Town ASSIGNMENT OF ERROR NUMBER 1 In his first denying assignment his motion to of error the defendant argues the trial court erred in quash for failure defendant contends that the amended to timely prosecute charged offense should govern the within the time trial must be commenced 3 Captain Webb was a lieutenant at the time 4 Major Delalme was a of the lieutenant at the time of the 3 Specifically the shooting shooting period During the applicable time period La C CrP art 578 provided in pertinent pmi A Except otherwise as provided in this Chapter no trial shall be commenced 1 capital of the prosecution In 2 cases after three years from the date of institution In other institution felony cases after of the prosecution and The offense charged shall determine the applicable limitation Louisiana Code of Criminal Procedure article 582 When state must the new defendant obtains a established granted The defendant Trial commenced first on degree murder was court to refix the trial for June 16 22 1999 prosecute seeking defendant the one year had until 28 declared However indictment a 28 1999 to 1997 for first degree no trial was was set charge was ordered was was for this time and second to on timely art 582 degree of oral motion quash for failure prosecution prosecution an under La C Cr P charged murder following day the jury motion to commence commence On the quashed that since the offense 1999 to year from the date or within the period mistrial The State made a period from the day mistrial May one mistrial the a On this date the State amended the the defendant filed State had until March 27 there is longer March 27 degree murder 1998 to have the suggested on 1998 second deadlocked and the trial September or indicted May 27 to or provides the mistrial is ordered Article 578 whichever is by trial the second trial within commence trial is a new from the date of two years The murder the On the other hand if applied then since mistrial was the State ordered May 1998 In its memorandum in that under La C CrP opposition to the motion art 578 the offense 4 to quash the State countered charged determined the applicable time limitation and that since the defendant murder under Subsection On prosecution commence 1 of Article January initially charged was 18 2000 the trial court denied the motion to next moved for apparently granted continuance which trial commenced In State We have an v on Wilson rape had no 546 So 2d 557 559 on l La n until March 27 2000 to the trial La 1978 to trial only on a aggravated court App 1st Cir any a The defendant the defendant s second the supreme court stated Id trial denied the motion defendant files a Thus the State s attempted aggravated also State see Peters v 1989 periods of suspension commence greater crime charged in rape to or Two months to interruption prior the State had this date to January quash Louisiana Code of Criminal Procedure article 580 When 2000 lesser offense the three year time limitation Accordingly absent 18 2000 483 the indictment from effect as that the State may abandon the proceed to amend 19 day January 19 2000 363 So 2d 481 repeatedly held indictment and decision September was degree 578 the State had until March 27 2000 to quash and scheduled the trial for the a with first motion to quash provides or other preliminary plea the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon but in no case shall the state have less than one year after the ruling to commence the trial One year after the have been commence January trial 18 ruling 2001 Accordingly on the motion Thus on to quash on January the State had until September 18 2000 would January 18 19 2000 the second trial 2001 was to timely commenced This assigmnent of error is without merit ASSIGNMENT OF ERROR NUMBER 2 In his second assigmnent of error the defendant argues the trial court erred 5 in the prosecutor allowing to treat Nelson Howard Jr defendant further argues the trial closing argument to Donald s Ray West make references failure Prior to Howard Chuck that Howard the the 5th Amendment incrimination regarding as the self incrimination right testify the prosecutor As such to not say there The trial cannot not want to for this testify case or as he does anything Howard on complete have the not the right grounds of no and to self exposure advised Howard that because of the court be any his as jury case prosecution against him whatsoever case name and address He then stated that The prosecutor assured Howard that he would for well with the defendant in this was a co any statements asked of him in this prosecuted to original prosecutor granted Howard took the stand and gave his he did refusal The trial court then informed Howard that he had grant of immunity insofar or the prosecutor in his allowing s The trial immunity for his testimony here today plead Howard the stand at trial court Long ened in to to appear at taking present informed the trial that Charles court adverse witness as an involvement in this case not be whatsoever The prosecutor resumed questioning and Howard testified that he knew the defendant and identified him in court When Howard refused to answer trial jury The trial to Howard comi retired the granted immunity and that he could that Howard was a held in contempt have the right to The 5 jury At this point it not returned prosecuted The trial witness and that ifhe refused Also since Howard remain silent be explained was a witness and to not question the that he had been court testify on pointed out he could be trial he did not 5 and the prosecutor resumed the trial court took a brief recess to defense counsel and the State and that it spoke testify in to testify going you to subpoenaed court the next that you have been When it returned the trial was granted immunity 6 questioning informed and it s court Howard stated that by your counsel that he s told my understanding that you are answered the first few questions The prosecutor adverse witness proceeded given to questions but then refused the answer requested that he be allowed and the trial court ask leading questions police Following to to is some to treat granted the request based on a of that previous exchange the next several Howard as an The prosecutor statement Howard had between the prosecutor and Howard Laland6 that on that particular night the late night of February 19 early morning of February 20 that you Brandi Brown Donald West and Jason Hill were riding around in Q Do you remember Jason Hill A s telling vehicle I don t want to Mr footnote added answer the question Do you remember saying as you were driving through the Q complex they spotted a person known as Turtle coming from one of the hallways in the complex Do you remember A I don t want to MR TILLEY Still telling him that answer defense counsel object to the whole line of questioning It s hearsay THE COURT Let the objection be noted Overruled Q You also remember telling him that they knew he Turtle dealing illegal drugs A I don t want to was answer Q Do you remember telling him that Jason Hill continued driving he stopped and through the complex you and Brandi Brown 6 The giving only other reference to Laland is the prosecutor shortly before identified hostile witness Let me ask you this Nelson Do you remember a statement to Mr Ronald Laland on May 24 2000 Howard was a question as a 7 asked by got out of the car You remember A I don t want to answer That Hill Q telling him that stopped in the drive as Turtle came from the apartment and walked to the Hill vehicle Do you remember A I don t want to answer You also remember Q Brandi Brown give it went telling him that it running to the vehicle And then he shot Turtle with up Do you remember A him that telling I don t want to a was about that time that shouting quote Give it up shotgun telling him that answer MR TILLEY Still note my objection as hearsay Your Honor THE COURT That s a continuing objection MR TILLEY Continuing yeah Continuing objection You Q also remember suggestion telling him A that they rob Turtle of his money answer Do you remember point the jury it was Defense counsel made contempt him that Brandi Brown made the that I don t want to At this telling retired no and the trial court found Howard in request to the trial court for a mistrial or for the jury to be admonished The defendant Amendment cross right to contends was the prosecutor due process and Sixth Amendment examine witnesses evidence that against him introduced while Howard implicated right to his Fifth confront and While the defendant concedes that was on 8 the stand no the prosecutor made it very clear to the entire Howard had for the error to given that he jury was going 85 S Ct 1074 In 13 L Ed 2d 934 final Loyd his answer to as a to murder witness at lawyer advised questions answer any When answer Still on refusing the prosecutor the Loyd who fired the s was reversible the jury Howard In killing s s Alabama 380 U S v defendants were s trial Since privilege Loyd s tried for separately The State guilty conviction not was of self incrimination and not Loyd took the stand he invoked the privilege and refused the alleged crime The trial judge ruled that privilege because of his conviction and ordered him the judge declared answer of privilege Loyd examination cross Loyd confession read shotgun Douglas statement Henry tried first and found was the defendant examination the prosecutor read document co him to claim the the to Loyd Loyd questions regarding Loyd could not rely on a 1965 and Douglas the defendant assault with intent called to read to the defendant in police which implicated support of this contention the defendant relies 415 sentence of The defendant contends that it investigators prosecutor through leading questions statement to the by sentence s to the a hostile witness Under the jury that wounded the victim named the defendant Douglas giving guise of entire written confession a to cross seven page the person as 380 U S at 415 417 85 S Ct at 1075 1076 In noting that Loyd alleged s that the defendant fired the shot the to cross examine Loyd as cross examination secured 419 85 S Ct prosecutor at was 1077 not statement could not a to the by statement constituted the Douglas by inability alleged confession plainly denied him the right Douglas court cross examination 9 Douglas further found that witness the inference from his be tested direct evidence court found the defendant s the Confrontation Clause The only 380 U S since of at the reading that Loyd made the Similarly Loyd could not be examined cross the defendant statement on a unfairly prejudiced was 380 U S at 420 423 Douglas The Douglas Loyd compelled to full 512 in parties that it La simply refuse to repeated refusal C E to secured testify to at for his 611 C unwilling with Howard was going to to unfair See State The is so respond s Smith 96 261 pp 542 545 writ denied 97 0314 testify not Moreover intennittently matter 10 re had questioning 16 21 or as to during the answered several Given Howard La ask of s Howard leading questions a There is witness who is nothing in the suggested by the defendant over his Sixth Amendment App 3rd La 6 30 97 the to have known that Howard would leading questions foregoing analysis regarding In attorney who told Howard that he would be able to proper be the trial court Further point during his examination which allows can granted immunity from compelled testimony advantage by running roughshod v An individual The trial court further noted its Howard suggest that the State acted improperly So 2d 529 was questions the prosecutor quite properly had answer mi an testify whereas Howard testimony granted immunity some adverse witness an In of the first trial that Howard had been The prosecutor therefore could questions to the instant The prosecutor in the instant examination of Howard s Finding reversed his conviction compelled to testify 1978 spoke Howard Id matter pro quo for quid a exchange that rights was by the previous prosecutor understanding record such as he had been or court by him 85 S Ct at 1077 1079 as testify because unable Douglas and immunity informed the See La admitted give testimony incriminating himself if he been informed declared not lawfully compelled 357 So 2d 508 prosecutor the not was prosecution and punishment Parker but to Douglas decision is distinguishable from granted full immunity granted imputed Cir 12 30 96 687 696 So 2d 1004 propriety of the prosecutor s examination of Howard defendant s right to decide the such elTor Chapman v to confrontation issue since elTor even if was violated elTor to we were would be harmless 386 U S California 1967 hmmless there remains the notwithstanding 18 analysis The Factors to be considered witness in testimony cumulative the presence testimony otherwise State 931 the or of the witness permitted the by and elTor was prosecution material of writ denied 95 0420 La Arsdall 475 U S 673 684 16 6 Jackson testified that It Town and his alias was Rock Hard witnessed the defendant shoot in his car Henry to talking give to it up the Cir Henry 7 10 94 was contradicting the examination quoting Delaware Shaheen an area to testified that of Gonzales known his Van v Henry Hard as through the testimony of Furthennore According 930 1986 person who shot him trial case Rock Hard from China or at s 646 So 2d 925 as China Hill testified that he testimony Hill Henry when the defendant approached with When testimony cross 1438 89 L Ed 23 674 and court importance of the or extent of a realized fully strength of the prosecution clearly established Major Delaune that the defendant lived in the to reasonable doubt a cOlToborating Henry identified the was subject 17 L Ed 2d 705 were whether the Rock Hard as confrontation are 827 828 include case Webb Captain elTors beyond 655 So 2d 340 95 identified the person who shot him Rock from Chinatown s points 106 S Ct 1431 In the instant matter Town court App 1st Butler 93 1317 pp 9 10 La v harmless the overall course find it unnecessary was a examination cross absence of evidence on of whether the inquiry is whether the reviewing COlTect reviewing we determine there 87 S Ct 824 assuming that the damaging potential of the is nonetheless convinced that the However Confrontation 23 question a was sitting shotgun and told Henry put his hands in the air the defendant shot Henry in the stomach from about two feet away 11 The defendant then got into Hill s car and Hill drove away Hill three different statements dropped to the off the defendant third would be best for him Thus total a to tell of four witnesses find that the prosecutor the shooter as be involved as including to at were an State s s case defendant s cumulative to to Howard against the defendant and the jury did guilt The instant guilty verdict 1317 at p 279 11 s examination of Howard 646 So 2d at 931 113 S Ct 2078 reversible 2081 was the actual Accordingly which implicated not rely 1993 v the court materially strengthen the on it in determining the surely unattributable See also Sullivan we We conclude that the See La C CrP 124 L Ed 2d 182 to and corroborative of the in unanswered examination of Howard did not in the prosecutor trial because he felt it Henry testimony of Jackson Shaheen Captain Webb and Hill prosecutor In his second and eyewitness the person who shot leading questions s Hill gave the truth shooting identified the defendant defendant not want to he told the police what he had testified statements Marchand Lane In his first statement Hill did not tell the police police what happened because he did on art 921 Louisiana to any Butler 93 508 U S Accordingly error we 275 find no error The defendant further contends that the prosecutor in his rebuttal argument exploited Howard s refusal to testify Following are the closing complained of excerpts Nelson Howard He scared to testify ladies and gentlemen he hyperventilates and the veins were sticking out in his neck He refused to testify and he s going to suffer the pulsing consequences for that refusal to testify Direct contempt You can go to jail for a long time for that He has complete immunity I didn t offer him that immunity s so Another district attorney did He s got he knows he can t be prosecuted and he still refuses to immunity 7 While the prosecutor asked Howard several questions we note that only one question directly implicated the defendant as the shooter You also remember telling him that it was about that time that Brandi Brown went running to the vehicle shouting quote Give it up give it up And then he shot Turtle with a shotgun Do you remember telling him that 12 That tells testify to go to jail me that that s a bad in the wind s s He scared s going for that Quack has got charges against that he He man reasonable him Quack is a street tenn I would also venture to say that that s a if Nelson Howard is going to hyperventilate hypothesis and go to prison perhaps for testifying against this man What s reasonable is is sic that Quack is hiding out because he may have to testify against Brandi Brown too If his co hearts sic scared of him that they didn t testify the fear is real and I grant you he needs are so and he to actually kills people be in prison to According but the lack of the defendant the prosecutor testimony which leads the jury but upon the evidence not without the test of cross 1272 La 2 29 00 L Ed 2d 660 exercIse a and examination 767 So 2d 682 2001 clear that it is presented a privilege just to to to not arguing speculate witness reasons not cert denied 531 U S Louisiana knowingly impress the evidence v doing all so Haddad 99 148 Court has made it Supreme jury on testimony 1070 121 S Ct 757 call to the stand upon the from for not The defendant cites State and asserts that the impermissible was a witness who will the fact of the claim of privilege As previously discussed above that the prosecutor called Howard privilege against to self incrimination there is the stand To the nothing knowing that he would contrary it defense counsel and the prosecutor that Howard had his grant of objections immunity from prosecution to these statements by the remarks made in closing argument counsel makes objection no to the suggests exercise his clear to the trial court such privilege because defense counsel made The issue as to the propriety of no of preserved for review where defense statement 13 was no Moreover prosecutor is not in the record that either during argument or after the In addition argument mistrial request for State v admonition an have waived any such to 515 So 2d 494 Burge motion for or 505 La error on 1 App st Cir writ denied 532 So 2d 112 La 1988 We note that prejudicial remarks we was no Therefore the defendant is deemed La C Cr P art 841 appeal 1987 there may require do not find any remarks This the lack of despite of assignment so reversal objection extremely inflammatory 515 So 2d at 505 Burge inflammatory or prejudicial so as to and After review require reversal is without merit error SENTENCING ERROR The trial life with sentence illegally lenient an lenient probation parole sentence may s sentence be corrected sentencing discretion and amend the 12 28 06 as sentence 952 So 2d 112 the the Department of Corrections for of sentence suspension Accordingly the We find that correction of this simply or to The murder is life at hard labor without benefit of parole degree suspension of was sentenced the defendant benefit of for second or court only en Under La at any illegal time sentence such there is See State banc sentence v by not no reason Price Accordingly 2005 2514 since was providing that it be served without the benefit of parole imposed a we court an court illegally on review 9 involve the exercise of why this eligibility sentence that could be 882 A appellate an does art probation the trial imposed by C CrP sentence court not App 1st Cir without parole La sentence should correct the sentence probation or by suspension of sentence 8 The minutes indicate the defendant probation parole was sentenced to life at hard labor without benefit of However when there is a discrepancy suspension of sentence the transcript prevails State v Lynch 441 2d So 732 transcript or the minutes and the between 734 La 1983 9 by illegal sentence may be con ected at any time by the appellate court on review La C CrP art 882 A An an 14 court that imposed the sentence or CONCLUSION For the sentence probation foregoing is amended or to reasons provide the defendant s conviction is affirmed that it be served without the benefit of suspension of sentence and the parole if necessary remanded for the correction of commitment order CONVICTION AMENDED AFFIRMED AFFIRMED AND SENTENCE REMANDED COMMITMENT ORDER IF NECESSARY 15 AMENDED AND AS FOR CORRECTION OF STATE OF LOUISIANA NUMBER 2007 KA 0366 FIRST CIRCUIT VERSUS COURT OF APPEAL BRANDI BROWN CARTER C J I court s CONCURRING respectfully failure to STATE OF LOUISIANA concUT impose No corrective action is necessary for the trial the defendant s sentence probation or makes the statutory restrictions self activating App without benefit of suspension of sentence Louisiana Revised Statutes 1 Cir 2 14 07 959 So 2d 957 960 State v parole 15 30 1 1A Clesi 06 1250 La

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