State Of Louisiana VS Joseph Brown
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 KA 1068 c 4 STATE OF LOmSIANA VERSUS nJ7 JOSEPH BROWN Judgment On Rendered November 2 2007 Appeal from the Nineteenth Judicial District In and For the Parish of East Baton Rouge Court State of Louisiana Docket No 04 04 0373 Honorable Richard D Anderson Hon Doug Moreau District Attorney Baton Rouge Louisiana Judge Presiding Counsel for Appellee State of Louisiana By Dylan C Alge Assistant District Attorney Frederick Kroenke Counsel for Defendant Baton Joseph Brown Rouge Louisiana BEFORE Appellant GAIDRY McDONALD AND McCLENDON JJ McCLENDON J Defendant first attempted 30 Joseph degree Brown Count 3 robbery charged by murder Count 1 2 aggravated burglary Count armed was a bill of information with violation of LSA R S 14 27 and a violation ofLSA R S 14 60 violation of LSA R S a attempted 14 27 and 64 and 4 a to all possession of a firearm after having been convicted of a felony Count violation of LSA R S Defendant entered 14 95 1 plea of not guilty a charges The state subsequently murder Count 1 and defendant determined defendant offender was proceeded guilty as charge of attempted first degree to trial before The charged state proceedings against defendant Following adjudicated defendant trial dismissed the court a second sentenced defendant aggravated burglary conviction benefit of probation parole for the felon in or possession of serve suspension a on the sentences are to attempted be served Defendant has Count 3 court The years at hard labor for his probation parole robbery conviction a or 1 000 00 fine and seventy suspension of Count 3 The each other defendant s motion to appealed urging three assignments of convictions habitual offender on of sentence and concurrently with The trial court denied instituted habitual firearm conviction Count 4 armed jury fifteen years at hard labor without Count 2 years at hard labor without benefit of sentence thirty The jury hearing the trial a felony habitual offender to a adjudication and the reconsider error sentence We affirm the sentences FACTS A few days before October defendant moved into Prior to a 22 2003 residence located this time Brown had been on Torry Topeka hospitalized 2 Brown no relation Street in Baton at Touro to Rouge Medical Center in New Orleans after being paralyzed Brown arrived in Baton living with him Rouge Joseph Franklin in order to to sleep each in the went to rear sleep Eric a an accident When long time friend was him with assistance provide On October 22 2003 Georgia to stay with the result of as Hughes cousin of Brown a Brown in order to assist him That arrived from s night Hughes went bedroom of the residence while Brown and Franklin on separate sofas in the living room in the front of the house After everyone had gone at the door but did taken him more wheelchair attempt the residence bed Brown heard to turned the At that time four to five According clothing with to Brown bandanas little pecks get off the sofa and into his to on couple a the door because it would have answer than fifteen minutes Franklin got up answered the door in dark not to light men all of the in the living room and rushed through the door of men were black males dressed covering their faces and each had some type of weapon Brown testified that two of the Brown and Franklin others were held at men threw him gunpoint by proceeded through the house The two of the men were While to the floor men at least two demanding drugs and money Hughes at least bed one and According had held to awakened when two of the men a gun drawn Hughes at gunpoint was According as the to men Hughes and Brown there 3 entered the bedroom and demanded were no he was drugs drugs or pulled and out of money money in the residence began 1 One of the shot men were who had been residence After Franklin leaving Franklin called him and Brown at holding hearing which allowed Brown to this the gunman observe his face men Department interviewed included a to of the one in the front of the his bandana off his face clearly and said January 16 2004 2004 photographic Cox men Hughes of the Baton few words a a the shotgun According police Sergeant lineups and had an was to transported to Rouge City Police Brown and Franklin to Brown of the weapons carried some chrome weapon By January two pulled Brown and Franklin provide descriptions of the observe and describe On Joe Joe out gunpoint left Franklin contacted 911 hospital and Sergeant Tillmon able to men Brown could not hear what the gunman told Franklin After the a in the neck and all of the Hughes leave to As the men men by the he was were able gunmen to which assault rifle developed defendant as a suspect Cox contacted Brown in order to show him that included two persons of interest Accompanied by Detective George Caldwell Sergeant Cox met with Brown Brown could photographic lineup as being one of the not identify anyone but when shown the second men residence and held him who at recognized in as one gunpoint According the first lineup identified defendant who invaded his home when his cousin Brown also identified defendant in court man he of the men to Brown was shot who entered his defendant pulled his bandana down after Franklin addressed him was as the Joe Joe On January Higginbotham 1 Franklin was 17 2004 of the Baton in an unrelated investigation Officer Rouge City Police pulled murdered several weeks following this 4 incident over an Brian older model Cadillac that had left from Drive Officer Cadillac Officer toward his As the Cadillac the entrance activated the lights exit in Port Allen of the on was driver and requested insurance The driver who that he had none identified defendant if there defendant license vehicle s was any weapons were the searching handgun later identified trunk of the vehicle 2 as a cartridges and Brown s one Topeka Michelle At that time 2 Following as sure man in the Higginbotham car was then Higginbotham asked and defendant Officer vehicle Higginbotham asked contraband in the vehicle and Officer not defendant agreed Higginbotham recovered was loaded was seized the State Police Crime Lab identified the two bullet recovered from the October 22 2003 incident as defendant Pate s being fired from this mother in 2004 she owned many as ten no a knowledge an access affidavit ofthe weapon 5 testified and stating at weapon at trial 1992 Fleetwood made relatives had his arrest defendant executed vehicle with him and had a Wesson 40 cal under the liner of the Smith Street residence acknowledged that or The weapon which Subsequent testing by at the first registration and proof of The other Officer if he could check the vehicle to make While to Higginbotham stop defendant informed Officer Michael Allen responded there to began a stopped Officer Higginbotham approached the his driver were wearing bank of the river of the requested information as Officer his unit and directed the Cadillac west not was Nicholson Drive it Mississippi River Bridge the on the Cadillac following passenger on Nicholson on by his supervisor that the After position proceeded north Once the Cadillac later had been contacted Higginbotham observed that the seatbelt enter Higginbotham moving was residence under surveillance a use Pate by Cadillac of her vehicle that Allen was in the defendant including Pate denied she put the weapon in the trunk of her Pate filliher admitted that defendant vehicle Defendant did not testify at called was Joe Joe trial ADMISSION OF PHOTOGRAPH OF DEFENDANT In his first in denying objection his Motion in Limine to The assignment of error defendant to photograph introducing this outweighed any a at issue is gang related probative value a Defendant client because he would be a holding prevent the or his posture the argued a gun from state photograph that could be described as going to as state was being not gang related but recognize this posture for what it may be photograph would unfairly prejudice his portrayed menacing as jury and a threat to conclude defendant to was the guilty Defense counsel also contended that the bad person identifying a manner acknowledged that the average citizen which could lead the infonnation to Defense counsel Defense counsel contended that this was seeking fireann in members could still absence of subsequent photograph because the prejudicial effect of the photograph describe his client s hand gestures because he of defendant picture a motion in limine depicted defendant holding jury and his Photograph the introduction of the photograph Defendant filed that Exclude argues the trial court erred information about the gun in the describing when the photograph was photograph or any taken would further create unfair prejudice The state argued that the photograph of defendant because it reinforced defendant s connection photograph showed defendant holding the gun found in the vehicle he matched by ballistics as was a the crimes probative Specifically the gun consistent in all respects with and that gun had been driving the weapon fired 6 to was at the Topeka same Street crime scene The state argued defendant s weight jury would give the evidence a concerns admissibility of the evidence chambers the trial court art probative value 401 means is confusion in the case are 6 20 97 delay or waste or appeal only their generally if the When make the determination of the may be excluded if its State v 1049 s No of time any fact LSA C E shed art 403 upon any fact light describe the person to the probative 96 1884 p provided Hebert writ denied 97 1892 by or place value 16 La La or or thing outweighs 1 Cir App 97 19 12 706 admission of photographs will be overturned on error will be found unless overwhelms the jurors sense some of the photograph depicted aspect of the reason and leads See State v 16 697 So 2d at 1049 executing Nicholson Drive of unfair misleading the jury or convict defendant without sufficient other evidence Hebert 96 1884 at p the to to tendency any prejudicial effect of the photographs clearly outweighs probative value to admissible The trial court photographic evidence them relevant are 697 So 2d 1040 So 2d 450 having consequence issues of the prejudicial effect any of photograph in substantially outweighed by the danger Photographs which illustrate depicted evidence Although relevant evidence considerations of undue Issue the seen question a probable or less probable than it would be without the evidence LSA C E prejudice it had Noting that the existence of any fact that is of more than rather how much affecting denied the motion in limine Relevant evidence action issues were a search for an unrelated cnme at 1812 police seized the photograph in question defendant Topeka Street incident and trunk of the vehicle he warrant was holding to a gun similar to the gun used the weapon Said during previously recovered from the Subsequent ballistics testing revealed driving 7 this weapon the scene was the same weapon used to fire the of the instant offenses it reinforces defendant s connection the instant crimes to photograph resembles the from the trunk of the vehicle defendant Street incident taken The was weapon in the been the weapon used in the instant crimes however jury was out pointed weapon seized was used in the through way to tell when the was no possibility that the which driving Defense counsel examination of witnesses that there was relevant in that Clearly the photograph is Moreover the weapon in the Topeka cartridges recovered from photograph cross photograph may not have certainly argued before the the fact that the weapon in the photograph is clearly consistent with the weapon seized from defendant makes the probative value of the photograph Out of the an photograph outweigh Leonard v An error 05 0011 US note 05 1382 was pp 936 167 L Ed 2d 100 if the admission of even subject to 12 13 unimportant 2d So harmless La surely unattributable p 40 La 7 10 06 127 S Ct 1279 that it is is harmless ifit is whole and the verdict rendered Leger we unfairly prejudicial was So 2d 660 668 69 v prejudice to defendant abundance of caution See State analysis any unfair 108 2007 see to error 06 16 6 932 in relation to the the error State 140 cert denied also LSA C Cr P art 921 Defendant Torry Brown was identified able defendant own to as one of the victims of the home invasion Brown identified defendant his home and held him was by observe Joe Joe at as one of the men gunpoint demanding drugs and defendant s entire face after money Franklin and defendant removed his bandana mother admitted that her son was referred Brown also identified defendant in court 8 to despite as who entered addressed Defendant s Joe Joe defendant Brown s Further change in appearance at the time of trial incident defendant had Brown longer acknowledged braided hair glasses but stated that he would never we unattributable to any surely not wearing face s Finally driving matched the weapon Street incident Topeka Considering the foregoing were thinner and was was the time of the at forget defendant the gun seized from the vehicle defendant used in the that fmd the guilty verdicts in this admission of the erroneous case photograph in question This assignment of error is without merit EXCESSIVE SENTENCE In his second seventy year of error whose trial by a scene seized was Article Count 3 is excessive witness by charged was with serious weapons and other his was drug offenses police at when the weapon driving Defendant does people 1 section 20 the was not contest of the Louisiana Constitution it may violate a Although defendant to is nothing more his disproportionate as to are one s constitutional review be within right against Generally grossly disproportionate imposition to of a the pain grossly disproportionate if when considered in shock prohibits the sentence may than the needless A sentence is considered punishment s a appellate is considered excessive if it is the crime and so was punishment and is subject suffering him against inconsistent with what he told the numerous severity of the crime or and support of his assignment Counts 2 and 4 statutory limits sentence In evidence only imposition of excessive punishment excessive defendant contends that his error and that the vehicle he used on on argues that the testimony crime sentences sentence defendant identification assignment of sense light of the harm to society of justice A trial it is judge is given wide discretion in the imposition of sentences within statutory limits and the 9 imposed should sentence be not manifest abuse of discretion Cir 6 25 04 State 878 So 2d 849 aside set excessive in the absence of as Albarado 03 2504 p 3 v 850 51 writ denied 04 2231 La 28 1 La 1 App 05 893 So 2d 70 Defendant adjudicated was second as a basis of his conviction for attempted Topeka Street incident and previous second a felony offender defendant court LSA R S 15 529 1 A court In his expressed no defendant s for reasons remorse his enhanced in order to influence for his conduct Torry court defendant as history to notified to of a As by a of years the trial 3 of seventy term attempted armed juvenile extreme sentence threat to court Torry Brown testify s also noted that mother s residence The trial court also and adult criminal involved many crimes noted the pre an The trial Brown not to considered defendant s extensive the trial ninety nine to was so conviction of the sentence a the for sentence the trial court noted that defendant had family had frequently gone noted defendant s receive and 14 27 D 14 64 B a out on simple robbery subsequently sentenced defendant imprisonment robbery 1 to half years a offender robbery arising eligible was for his enhanced conviction and The trial years armed conviction for slightly longer than twenty four and imprisonment felony habitual history and against the person Finally investigation report characterized society and recommended maximum sentences The facts of this Defendant accompanied by the home of the course even case Torry Brown a provide at no paraplegic Finally s argument least three other armed individuals invaded of this invasion the occupants shot in the neck support for defendant we note 10 in search of were that drugs and money held at gunpoint and despite the heinous In one was nature of these crimes defendant did was eligible Accordingly not receive the maximum we do not find the sentence for which sentence imposed to he be exceSSIve This assignment of error is without merit CONVICTIONS HABITUAL OFFENDER ADJUDICATION AND SENTENCES AFFIRMED 11
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