State Of Louisiana VS Ray A. Brooks
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 1864 STATE OF LOUISIANA VERSUS RAY A BROOKS J Judgment Rendered May 6 2011 Appealed from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Case No 412111 The Honorable Richard A Swartz Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington Louisiana State of Louisiana Kathryn W Landry Baton Rouge Louisiana James W Williams Roger W Jordan Jr Counsel for DefendantAppellant Ray A Brooks Gretna Louisiana BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY J The defendant Ray A Brooks was indicted for first degree murder a violation of La R 14 He pleaded not guilty At the beginning of trial S 30 the state gave notice that it would not seek the death penalty Defendant was found guilty as charged by a unanimous vote of the jury The trial court subsequently sentenced defendant to life imprisonment at hard labor without benefit of parole probation or suspension of sentence Defendant now appeals raising five assignments of error For the following reasons we affirm defendant conviction and sentence s ASSIGNMENTS OF ERROR Defendant contends that his conviction should be reversed based upon the following errors in the trial court 1 The trial court erred in failing to grant the defendant motion for s mistrial based on the state playing for the jury a videotaped statement s given by defendant that included references to other crimes 2 The trial court erred in failing to grant the defendant motion for s mistrial based on the state closing argument referring to the trial court s s ruling on a pretrial motion to suppress the identification of the defendant which had the same effect as the trial court commenting on the evidence 3 The trial court erred in refusing to allow into evidence testimony regarding a statement made by Freddie Bedford thereby impairing the s defendant due process right to present a defense 4 The trial court erred in ruling that the state could offer as rebuttal or impeachment evidence an alleged confession the defendant made to Robin Allen since the defendant only received notice of the alleged confession four days before trial 2 The state failure to provide discovery consisting of criminal s 5 history and impeachment information regarding state witnesses until the day of trial as well as the late notice given four days before trial of an alleged confession by the defendant prevented the defendant from properly preparing for trial rendering defense counsel ineffective at trial FACTS In the early morning hours of February 22 2006 police discovered the body of Scott Ramsey lying in front of a residence at 1021 North Polk Street in Covington Louisiana The victim died of multiple gunshot wounds to the back chest and buttocks According to Melissa Hull a friend of the victim present at the time of his murder the victim made his living by selling crack cocaine She testified that she saw the victim on the evening before he was shot counting his cash which totaled approximately 750 00 and then placing it in his sock Later she and the victim were sitting on the screened porch of the house on Polk Street when a man she subsequently identified as defendant approached them pointed a gun at the victim and demanded that the victim empty his pockets After the victim responded by jumping off the porch through a hole in its screen defendant shot him As the victim unsuccessfully attempted to escape and begged for his life defendant demanded that the victim surrender his property The victim then gave his cash and crack cocaine to defendant Defendant shot the victim again and then walked away There was evidence that earlier in the evening the victim had gone to a neighborhood convenience store and had openly displayed a large amount of cash Defendant was present during that incident In fact one witness testified that the victim teased defendant about having more money than defendant 3 FIRST ASSIGNMENT OF ERROR In his first assignment of error defendant contends that the trial court erred in denying his motion for mistrial based on the state introduction of s inadmissible evidence of other crimes Specifically defendant complains that the state played for the jury his videotaped statement to the police without first redacting those portions of the statement wherein he indicated that he had previously been in a lot of trouble and that the police on a prior occasion had him for a stabbing The record reveals that immediately after the videotape was played at trial defense counsel moved for a mistrial on the grounds that it contained the two stated references to other crimes evidence that the state should have redacted The prosecutor responded that defense counsel had been given a copy of the videotape perhaps as long as two years ago and had made no request for redactions of the two references in question The prosecutor further stated that he would have redacted the videotape if defendant had made such a request and the trial court had ruled the state should do so The trial court denied the motion for mistrial without reasons A mistrial is a drastic remedy that should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial Moreover determination of whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion State v Berry 95 1610 p 7 La App 1st Cir With regard to the first reference objected to defendant did not clarify the nature of the trouble in which he had been involved previously As to the second reference defendant did not indicate whether he had been arrested or merely questioned by the police in connection with the stabbing However he did state that he was cleared of any involvement in that incident 4 96 8 11 684 So 439 449 writ denied 970278 La 10 703 2d 97 2d So 603 Generally evidence of crimes other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant State v Millien 021006 p 10 La App 1st Cir 2 845 So 506 513 03 14 2d Under certain circumstances the admission of inadmissible other crimes evidence can warrant the granting of a mistrial See La C arts 770 771 P Cr 775 However La R 15 S 450 is also applicable to the situation at issue Pursuant to the latter statute very e confession admission or declaration sought to be used against any one must be used in its entirety so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford That provision contains no exception for excluding portions of a confession or admission that refer to other crimes The jurisprudence has resolved the conflict between the rules precluding the admission of other crimes evidence and the requirement of La R 15 that the entirety of an inculpatory statement be admitted by S 450 giving the defendant the option to waive the right of having the whole statement introduced See State v Blank 04 0204 pp 5051 La 4 07 11 955 So 90 131 32 cent denied 552 U 994 128 S 494 169 2d S Ct 2d Ed L 346 2007 State v Snedecor 294 So 207 210 La 1974 2d In State v Morris 429 So 111 121 La 1983 the supreme court explained 2d a defendant options under La R 15 in the context of the issue of s S 450 other crimes evidence as follows hen W the state seeks to introduce a confession admission or declaration against a defendant which contains other crimes evidence but which is otherwise fully admissible the defendant has two options He may waive his right to have the whole statement used object to the other crimes evidence and require 6 the court to excise it before admitting the statement or he may insist on his right to have the statement used in its entirety so as to receive any exculpation or explanation that the whole statement may afford A third alternative that of keeping the whole statement out is not available to defendant unless of course the confession is not admissible In advocating his position on appeal defendant seeks to add a fourth option which is to allow the entire confession or admission to be presented without objection and then to move for a mistrial on the grounds that it contains other crimes evidence This alternative is not one of the two permissible options available to defendant even assuming for the sake of argument that the references in question were inadmissible other crimes evidence See Morris 429 So at 121 2d We find no merit in defendant contention that the state had a duty to s redact any other crimes evidence contained on the videotape even in the absence of a waiver by the defendant of his right under La R 15 to S 450 have the entire statement heard Under the jurisprudence it is clear that La S 450 R 15 imposes a statutory duty upon the state for the benefit of the defendant and that the defendant has the option of waiving that right See Morris 429 So at 121 Snedecor 294 So at 210 2d 2d In the event a defendant chooses to have those portions of a statement referring to other crimes redacted he must make the waiver of his right under La R 15 S 450 known It is the defendant choice to make s See Snedecor 294 So at 2d 210 In the instant case defendant did not dispute the prosecutor s assertion at trial that defense counsel received a copy of the videotaped statement well in advance of trial Therefore defense counsel was charged with knowledge of what the statement contained and had the option at that point either of having the entire statement played or of waiving that right and 2 having the allegedly objectionable portions of the videotape redacted Since defense counsel did not request redaction of the alleged other crimes S evidence the state was obligated under La R 450 15 to present s defendant entire statement to the jury See Morris 429 So at 121 State 2d v Glynn 940332 p 1 La App 1st Cir 4 653 So 1288 1301 4 95 7 2d writ denied 95 1153 La 10 661 So 464 Accordingly the trial 95 6 2d court did not err in denying defendant motion for mistrial s This assignment of error lacks merit SECOND ASSIGNMENT OF ERROR In his second assignment of error defendant asserts the trial court erred in failing to grant a mistrial based on the prosecutor reference during s rebuttal closing arguments to the trial court pretrial ruling on the s admissibility of identification evidence by Ms Hull Defendant contends that the prosecutor by stating that the trial court previously had ruled the identification procedures were acceptable interjected the trial s court opinion into the proceedings He maintains the prosecutor remarks had the s same effect as if the trial court had commented on the evidence During the state rebuttal argument the following remarks at issue s were made Defense counsel said they can show pictures like this t Indicating Well ladies and gentlemen there were pretrial There were motions to suppress the identification which is filed in every case And the Judge said Yes you motions can At this point defense counsel interrupted the prosecutor argument to s state that he had an objection he would make at the conclusion of the argument The prosecutor then continued his argument on a different issue Upon completion of the prosecutor rebuttal the trial court gave jury s instructions including an instruction that if the court had given any 7 impression that it had an opinion concerning a fact or defendant guilt or s innocence the jury should disregard that impression The jury was retired to begin its deliberations Defense counsel then moved for a mistrial on the grounds that the prosecutor remarks that the trial judge found the s identification testimony to be admissible were equivalent to the trial court commenting on the evidence The trial court denied the motion Under La C art 772 the judge is prohibited in the presence of P Cr the jury from commenting upon the facts of the case either by commenting upon or recapitulating the evidence repeating the testimony of any witness or giving an opinion as to what has been proved not proved or refuted However a trial court ruling on the admissibility of evidence and its s reasons for its ruling do not constitute prohibited comments under this article provided the remarks are not unfair or prejudicial to the defendant See State v Knighton 436 So 1141 1148 La 1983 cent denied 465 2d S U 1051 104 S 1330 79 L 725 1984 Moreover a trial court Ct 2d Ed s comments on the evidence have been held to be harmless error if those remarks do not imply an opinion as to the defendant guilt or innocence s State v Bennett 000282 p 5 La App 1 st Cir 11 771 So 296 00 8 2d 299 writ denied 2000 3246 La 10 799 So 495 01 12 2d Closing arguments shall be confined to the evidence admitted to the lack of evidence to conclusions of fact to be drawn from the evidence and to the law applicable to the case The argument shall not appeal to prejudice and the state rebuttal argument must be confined to answering s the argument of the defendant La C art 774 However a prosecutor P Cr retains wide latitude when making closing arguments Moreover even if the prosecutor exceeds the bounds of proper argument a reviewing court will not reverse a conviction because of improper closing arguments unless it is 8 thoroughly convinced that the argument influenced the jury and contributed to the verdict State v Legrand 021462 p 16 La 12 864 So 89 03 3 2d 101 cert denied 544 U 947 125 S 1692 161 L 523 2005 S Ct 2d Ed In the instant case we find no merit in defendant contention that the s s prosecutor remarks constituted improper argument Defense counsel made the following statements during his closing argument Melissa Ann Hull didn identify Ray Brooks defendant until t which they showed her a blowup photograph one picture s hat T the whole point of a re they not supposed to do photographic lineup ladies and gentlemen is to show a group of pictures so as not to suggest who did it to see if the witness on their own can differentiate between six or more people who have similar features The prosecutor remarks conveying the trial court affirmative ruling on s s the admissibility of the identification evidence were made in direct response to the defense argument s The state had a right to answer defendant s P Cr argument attacking the identification procedures See La C art 774 State v Thomas 504 So 907 918 La App 1st Cir writ denied 507 2d 2d So 225 La 1987 In any event since La CUR art 772 would not bar the trial court from making an evidentiary ruling in the jury presence the prosecutor was s not barred from referring to the trial court ruling in its rebuttal argument s See State v Schaller 08 522 p 32 La App 5th Cir 5 15 So 09 26 3d 1046 1065 writ denied 091406 La 2 28 So 268 Here the 10 26 3d s s prosecutor remarks merely set forth the trial court ruling on the admissibility of the identification evidence which was neither unfair nor prejudicial to defendant Nor did the remarks imply an opinion as to the s defendant guilt or innocence Thus even if we were to consider the remarks as though they were comments made by the trial court they did not constitute impermissible comments under La C art 772 P Cr G As previously noted a mistrial is a drastic remedy that is only authorized when a defendant suffers substantial prejudice Moreover the denial of a motion for mistrial will not be disturbed absent an abuse of the trial court sound discretion s Berry 951610 at p 7 684 So at 449 2d Under the circumstances present we find no abuse of discretion in the denial of defendant motion for mistrial herein s This assignment of merit lacks merit THIRD ASSIGNMENT OF ERROR In his third assignment of error defendant argues the trial court erred in refusing to allow a defense witness to testify as to what she was told by a man she saw standing over the victim body going through the victim s s pockets Defendant contends the exclusion of this crucial evidence severely impaired his due process right to present a defense Chellander Harper who knew both the victim and defendant testified on behalf of the defense at trial According to Ms Harper she was visiting friends in the neighborhood near where the victim was shot on February 22 2006 As she was driving back to her hotel at approximately midnight to 00 m 1 a that morning she came upon Freddie Bedford leaning over the s victim body digging through the victim pockets She testified that she s began screaming and asked what was going on When she began to relate what Mr Bedford told her in response the state objected on the grounds of hearsay noting that Mr Bedford was available and could have been called to testify by the defense Defendant argued the testimony was not hearsay because it was not offered to prove the truth of the matter asserted Defendant additionally argued the testimony was admissible under the excited utterance and res gestae exceptions to the hearsay rule iIl Out of the presence of the jury the trial court questioned Ms Harper as to what Mr Bedford told her She said that when she told Mr Bedford that she was going to call the police his response was to this effect No re you not You going to get out sic here If you mention that you saw re me that that I Ms Harper was going to be next The state interjected that this testimony was not exactly the same as what Ms Harper previously had provided in her two taped statements to the police Thus the state requested that in the event the court allowed the testimony the state be allowed to play the entirety of Ms Harper two taped statements totaling s approximately two hours in length The trial court indicated it would permit the state to do so Thereafter the following colloquy occurred between the trial court and defense counsel THE COURT I think what we should do is she could just say that he said something to her that caused her to get out of there and not call the police MR JORDAN defense counsel Okay THE COURT Okay MR JORDAN that Can I respectfully object to the Court ruling or is s or that the Court was trying to use that as a clean medium to mediate our differences THE COURT without spending two hours over a statement I t don think is going to make that much difference 11 OTO Imo k I think the statement is fairly consistent I don t know if the paraphrasing is right It is what it is One moment Judge Judge we accept the Court instructions ll s THE COURT Thank you MR JORDAN m I going to instruct the witness as well Is that all right Judge THE COURT Yes sir Emphasis added The jury was then returned to the courtroom and Ms Harper s testimony continued Defense counsel asked Ms Harper if Mr Bedford made any comments to her but instructed her not to say what he told her Ms Harper answered that she was terrified and fled screaming and hollering as a result of the comments Mr Bedford made to her In reply to defendant contention on appeal that the trial court erred s in excluding the testimony as to what Mr Bedford specifically told Ms Harper the state contends that 1 the trial court never actually ruled on its hearsay objection and 2 the defendant waived any alleged error when he accepted the trial court proposal We agree The record reveals that when s the state objected to Ms Harper testimony the trial court initially stated to s the witness You can tell us what anybody said ma Both sides then t am presented their arguments on the objection In an apparent attempt to avoid the jury having to listen to Ms Harper prior taped statements totaling s approximately two hours as the state 12 requested in the event the objectionable testimony was allowed the trial court made the proposal previously described When defense counsel agreed to the court proposal s as to how the matter should be resolved the necessity for the trial court to rule on the state objection was eliminated The state contention that the s s trial court actually never ruled on its objection is correct Furthermore we agree with the state assertion that any alleged error s that may have occurred was waived Although the record reveals defense counsel initially intended to object to the trial court proposal defense s counsel thereafter clearly acquiesced to the trial court proposal when he s stated we accept the Court instructions When the defense acquiesces ll s to a ruling or proposal of the trial court any alleged error in that ruling is waived See La C P art 841 State v Huizar 414 So 741 749 Cr A 2d La 1982 and State v Hawkins 633 So 301 308 La App 1st Cir 2d 1993 As noted it was due to the defense acquiescence that the trial court s never actually ruled on the objection Additionally it is not clear to this court that the trial court would have excluded the testimony in question if it had been required to rule on the state objection For these reasons this s assignment of error presents no adverse ruling for us to review This assignment of error lacks merit FOURTH ASSIGNMENT OF ERROR In his fourth assignment of error defendant contends the trial court erred in ruling that a confession he allegedly gave to Robin Allen would be allowed into evidence as rebuttal or impeachment evidence at trial He argues that since the state did not give him notice of this alleged confession until four days before trial he did not have sufficient time to investigate the credibility of Ms Allen statement s Defendant further alleges that Ms Allen previously had given a statement in which she denied that defendant 13 confessed to her Based on the late notice of the alleged confession defendant argues it should have been excluded from evidence He claims that his decision not to testify at trial was based on the erroneous ruling by the trial court allowing the alleged confession to be used as rebuttal or impeachment evidence Initially it appears from our review of the record that defendant never raised the issue of the admissibility of the purported confession in the trial court Defendant filed a motion for continuance the day after receiving notice of this confession raising the late notice as one of the grounds for the continuance In denying the motion the trial court stated it understood that the state would not present the confession in their case in chief but may attempt to use it in rebuttal However the trial court merely ruled that the recent notice of the confession did not warrant a continuance without ruling on its admissibility In fact the admissibility of the confession was not raised as an issue at the hearing Moreover the record contains no objection by the defendant to the alleged ruling by the trial court An alleged error cannot be considered on appeal unless an objection was made at the time of its occurrence Accordingly since defendant failed to raise the issue of the admissibility of the confession in the trial court he cannot now do so for the first time on appeal See La C art 841 P Cr A La C art 103A and State v Reese 34 pp 11 12 La App 2d E 1 275 Cir 12 774 So 1164 1 1 73 00 20 2d 72 In any event we disagree with defendant contention that the s confession was subject to exclusion due to the late notice he received of its existence Under La C art 716 upon motion of the defendant the P Cr B state is required to inform the defendant of the existence of any oral confessions the state intends to offer into evidence at trial Further the state 14 has a continuing obligation to promptly disclose to the defense additional evidence that may be discovered or that it decides to use as evidence at trial La C art 729 P Cr 3 If a party to a criminal proceeding fails to comply with these provisions the court may order such party to permit the discovery or inspection grant a continuance order a mistrial on motion of the defendant prohibit the party from introducing into evidence the subject matter not disclosed or enter such other order other than dismissal as may be appropriate La C art 729 P Cr A 5 However the state has no duty to disclose information that it does not possess Therefore the exclusion of evidence is not an available sanction when the state promptly informs the defendant of the discovery of additional evidence even when the new matter is uncovered at an inopportune time for the defense State v Williams 448 So 659 664 La 1984 2d The record reveals that the state chose to reinterview Ms Allen the week before trial It was at that time that she disclosed that defendant told her shortly after the murder that he killed the victim The state immediately gave the defense written notice of the confession and made an audiotape of Ms Allen statement available to defense counsel The notice s was dated March 4 2010 four days before trial began Under such circumstances the state disclosure of the confession was s timely It is not disputed that the state gave notice of the confession promptly upon its discovery or that the state acted in good faith As the state only became aware of the confession days before trial it could not have given notice to defendant any earlier Additionally it was not until that point that it could be said that the state intended to offer the confession into evidence at trial Therefore no discovery violation occurred with regard to the confession since the state complied with La C P arts 716 and Cr B 15 3 729 See State v Fisher 380 So 1340 1345 La 1980 2d Hence defendant has established no basis for exclusion of the confession We note additionally that defendant makes the bare assertion in brief that as an alternative to excluding the confession the trial court should have granted his motion for continuance Although defendant did not assign error to the denial of a continuance to the extent that defendant assertion could s be construed as raising this issue we find no abuse of discretion in the trial s court ruling Whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial court and a reviewing court will not disturb such a determination absent a clear abuse of discretion La C art 712 P Cr State v Reeves 06 2419 p 73 La 5 11 So 1031 1078 79 cent 09 3d denied S U 130 S 637 175 L 490 2009 Ct 2d Ed Further even when an abuse of discretion is shown a conviction generally will not be reversed based on the denial of a continuance absent a showing of specific prejudice See Reeves 062419 at p 74 11 So3d at 1079 In the instant case defendant was given notice of the confession four days before trial Other than arguing generally that the defense needed more time to investigate the statement credibility defendant has failed to s demonstrate any specific prejudice he suffered from the timing of this notice Defendant now contends on appeal that his decision not to testify at trial was due to the trial court ruling the confession could be admitted into evidence However at the motion hearing defendant never raised the argument that the admission of the confession would preclude him from testifying Further when defense counsel informed the trial court at the 2 We additionally note that this court denied defendant application for supervisory writs s seeking review of the denial of his motion for continuance See State v Brooks 100422 La App I st Cir 3 unpublished opinion 10 9 16 conclusion of the defense case that defendant would not testify defense s counsel merely stated that after a discussion of the pros and cons it was decided it was in defendant best interest not to testify s Moreover in denying the motion for continuance the trial court noted that this matter previously had been continued at least twelve times at defendant request s Given these circumstances we cannot say that the trial court abused its sound discretion or that defendant was so prejudiced by the denial of a continuance as to warrant reversal of his conviction See State v McPhate 393 So 718 720 21 La 1981 Fisher 380 So at 1345 2d 2d This assignment of error lacks merit FIFTH ASSIGNMENT OF ERROR In his fifth assignment of error defendant contends the state failure s to provide timely discovery severely impaired the defense ability to s properly prepare for trial thereby rendering defense counsel ineffective Specifically he complains that the state did not provide criminal histories on its witnesses until the day of trial which made it impossible for defense counsel to verify the information or to receive certified conviction records from outofstate sources Defendant also reiterates his complaint that he received notice of the alleged confession made to Ms Allen only four days before trial giving the defense inadequate time to investigate the credibility of Ms Allen statement s A claim of ineffective assistance of counsel is more properly raised by an application for post conviction relief in the district court where a full evidentiary hearing may be conducted However where the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue is raised by assignment of error on appeal the issue may be addressed in the interest of judicial economy State v Moody 000886 p 5 17 La App 1st Cir 12 779 So 4 8 writ denied 01 0213 La 00 22 2d 01 7 12 803 So 40 In the instant case the record is sufficient to resolve 2d s defendant claim of ineffective assistance of counsel A claim of ineffective counsel is analyzed under a twoprong test developed by the United States Supreme Court in Strickland v Washington 466 U 668 687 104 S 2052 2064 80 L 674 1984 S Ct 2d Ed To be successful the defendant urging such a claim must first show that his s attorney performance was deficient This requires a showing that counsel made errors so serious that the defendant was effectively denied the right to counsel as guaranteed by the Sixth Amendment Secondly the defendant must prove that counsel deficient performance actually prejudiced the s defense meaning that the errors were so serious that the defendant was deprived of a fair trial It is not enough for the defendant to show that his s counsel errors or omissions had some conceivable effect on the outcome of the proceeding Rather he must show that but for counsel errors a s reasonable probability exists that the outcome of the trial would have been different Further it is unnecessary to address the issues of both counsel s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the two components Moody 00 0886 at p 6 779 So at 9 2d In the instant case defendant made no showing establishing either that the performance of his counsel was defective or that he was prejudiced by defense counsel performance as a result of the allegedly late disclosure of s discovery information by the state Defense counsel timely requested by written motion discovery of information regarding the criminal histories of the state witnesses s The defense received this information from the state during trial but prior to defense counsel cross examining the state s 18 witnesses The record further reflects that defense counsel utilized the information in crossexamining those witnesses including questioning Ms Hull as to whether she had convictions in Florida which she admitted Additionally defendant has not shown how the performance of defense counsel was deficient with respect to the confession made to Ms Allen Defense counsel promptly attempted to obtain a continuance the day after receiving notice of this motion The fact that the trial court concluded the motion was not well founded does not render defense counsel performance s defective Further while defendant makes broad allegations that his defense was severely disadvantaged because defense counsel had inadequate time to prepare for trial he has failed to demonstrate any specific prejudice suffered This assignment of error lacks merit CONVICTION AND SENTENCE AFFIRMED 19
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