NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-880
STATE OF LOUISIANA
VERSUS
BRIAN KEITH THOMAS
**********
APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 75061-FB HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
AFFIRMED.
Annette F. Roach Louisiana Appellate Project Post Office Box 1747 Lake Charles, LA 70602-1747 (337) 436-2900 COUNSEL FOR DEFENDANT /APPELLANT: Brian Keith Thomas Trent Brignac District Attorney Julhelene E. Jackson Assistant District Attorney Thirteenth Judicial District Post Office Box 780 Ville Platte, LA 70586 (337) 363-3438 COUNSEL FOR APPELLEE: State of Louisiana
2 PETERS, J.
Following a bench trial, the trial court found the defendant, Brian K. Thomas,
guilty of attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S.
14:30.1. The trial court subsequently sentenced him to serve forty years at hard
labor without the benefit of probation, parole, or suspension of sentence; and this
court affirmed the conviction and sentence on appeal. State v. Thomas, 10-269
(La.App. 3 Cir. 10/6/10), 48 So.3d 1210, writ denied, 10-2527 (La. 4/1/11), 60
So.3d 1248, cert. denied, ___ U.S. ___, 132 S.Ct. 196 (2011). The matter is before
us again based on the trial court‟s grant of an out-of-time appeal on issues
involving the effectiveness of the defendant‟s prior appellate counsel. For the
following reasons, we again affirm the defendant‟s conviction.
DISCUSSION OF THE RECORD
The evidentiary background of this criminal offense is set forth in detail in
Thomas, 48 So.3d 1210, and we incorporate that background herein by reference to
that opinion. For purposes of this opinion, it is sufficient to say that sometime
shortly after midnight in the early morning hours of October 21, 2007, the
defendant and others exchanged gunfire with persons outside the End Zone Bar in
Ville Platte, Louisiana. Shannon Fontenot happened to be outside the
establishment when the altercation began and was shot. Ms. Fontenot recovered
from her gunshot wound.
After completion of the original appeal process, the defendant filed an
application for post-conviction relief which the trial court rejected after a January
17, 2013 hearing. The defendant sought supervisory writs to this court, and in
State v. Thomas, 13-190 (La.App. 3 Cir. 10/23/13) (unpublished opinion), this
court issued the following ruling: WRIT GRANTED AND MADE PEREMPTORY: In State v. Cisco, 01-2732 (La. 12/3/03), 861 So.2d 118, the supreme court stated that an actual conflict arises when a defense counsel cross-examines a current or former client on a defendant‟s behalf. Materials submitted by Relator suggest that such a situation arose in the present case. Therefore, in light of Cisco, the case is remanded for a re-examination of the conflict-of-counsel issue that was addressed at Relator‟s post- conviction hearing on January 17, 2013. If the trial court finds an actual conflict occurred, it should determine whether the conflict adversely affected counsel‟s performance.
Further, the case is remanded for rulings on the substantive issues Relator raises regarding his right to a public trial and his right to effective assistance of appellate counsel. These issues are appropriate for post-conviction relief. La.Code Crim.P. arts. 924.1, 930.3.
The trial court responded to the remand by holding a December 19, 2013
hearing on the issues raised. This hearing resulted in a trial court judgment finding
no merit in the defendant‟s claims that his trial counsel had a conflict of interest in
representing him, that the defendant had not been denied effective assistance of
counsel at trial, and that the exclusion of the public on the last day of trial did not
prejudice him. Additionally, the trial court granted the defendant an out-of-time
appeal, but limited the issues to be considered in the out-of-time appeal to the
defendant‟s assertion that his appellate counsel‟s representation was ineffective in
not asserting on appeal that the trial court erred in (1) allowing an investigating
officer to testify at trial regarding statements made by a witness to the shooting
who was not called as a witness; (2) allowing a discussion between the defendant
and the district attorney to be admitted at trial; and (3) allowing a discussion
between the defendant and a security guard to be admitted at trial.
2 On appeal, the defendant expressed these issues in two assignments of
error:1
1. The trial court erred in permitting an officer to testify at the trial of this case as to statements made to him by Mario Wilson, denying Appellant the opportunity to confront and cross-examine his accuser as guaranteed to him by the Confrontation Clause of the Sixth Amendment.
2. Appellant was denied the right to a fair and impartial trial when the prosecution attempted to introduce conversations made during plea negotiations held during the trial of this case between the District Attorney and Appellant and, further, when security personnel were questioned concerning statements made either to them or in their presence by Mr. Thomas.
OPINION
United States Constitution Amendment VI and Louisiana Constitution
Article 1, § 13 provide that in a criminal proceeding a defendant is entitled to
assistance of counsel. To establish a successful claim of ineffective assistance of
counsel, a defendant must establish not only that his attorney‟s performance was
deficient, but also that the deficient performance altered the outcome of the trial.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). A defendant‟s
attorney is “entitled to a strong presumption that his conduct [falls] within the
broad range of reasonable professional assistance.” State v. James, 95-962, p. 5
(La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465. Additionally, “[t]he United States
Supreme Court has held that the benchmark for judging a charge of ineffectiveness
is whether the attorney‟s conduct so undermined the proper functioning of the
1 Subsequent to filing his appeal, the defendant sought to raise other issues which he claims were not raised in his first appeal. This court denied that motion based on the trial court‟s limited out-of-time appeal authorization, but the defendant‟s appellate counsel included these issues in the brief filed on behalf of the defendant. We limit our review to only those issues specifically referenced in the trial court‟s grant of the out-of-time appeal.
3 adversarial process that the trial cannot be considered to have produced a just
result.” Id.
Assignment of Error Number One
Craig Nicholas, a lieutenant with the Evangeline Parish Sheriff‟s Office and
the lead investigator of the shooting incident, testified at trial regarding statements
made to him during the initial investigation by Mario Wilson, a witness to the
shooting. Mr. Wilson did not testify at trial, and the defendant asserts on appeal
that Mr. Wilson‟s statements to Lt. Nicholas were inadmissible hearsay, and that
the trial court erred in allowing him to testify concerning the statements.
According to Lt. Nicholas, later on the same morning after the shooting
incident, he interviewed the defendant and Carvanski Fontenot2 concerning their
involvement in the altercation. When questioned, the defendant denied having a
weapon at the bar. However, Lt. Nicholas testified that the defendant‟s denial was
contradicted by statements later obtained from Mr. Wilson and others. Lt.
Nicholas interviewed Mr. Wilson later that same afternoon and, when asked what
Mr. Wilson told him, Lt. Nicholas testified that “According to Mario, in his
statement, „Brian Keith pulled a gun, pointed it towards us, so I started running.
And he started shooting, and he shot Shannon in her side.‟” Lt. Nicholas testified
that he then used the information obtained from Mr. Wilson and other witnesses to
obtain an arrest warrant for the defendant on October 23, 2007. The trial court
overruled the defendant‟s objections to the officer‟s testimony with regard to Mr.
Wilson‟s statements.
Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801. Hearsay
2 Mr. Fontenot would later be named as a codefendant with the defendant in the shooting.
4 evidence is not admissible except as otherwise specified in the Code of Evidence or other legislation. La. C.E. art. 802. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Martin, 458 So.2d 454, 460 (La.1984). Although a statement may constitute inadmissible hearsay, if the statement is merely cumulative or corroborative of other evidence, the admission of the evidence is harmless error. State v. Hester, 99-426, p. 17 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 107, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342.
A law enforcement officer may testify about information provided by another individual without it constituting hearsay if it is offered to explain the course of the police investigation and the steps leading to the defendant‟s arrest. State v. Addison, 05-378, p. 12 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 892, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36. However, an officer cannot testify that he acted on information obtained during the investigation as an indirect method of introducing the substance of out-of-court assertions of the defendant‟s guilt that would otherwise be barred by the hearsay rule. Addison, 05-378 at 12-13, 920 So.2d at 892-93.
State v. Hernandez, 11-712, pp. 13-14, (La.App. 5 Cir. 4/10/12), 93 So.3d 615,
624.
In this case, the trial court specifically concluded that the statement was
offered, not for the truth of the statement, but to show why Lt. Nicholas sought an
arrest warrant for the defendant. On the other hand, the defendant argues that this
factual finding was error because Mr. Wilson‟s statement is dated two days after
the shooting and not the afternoon thereof. That being the case, the defendant
argues that the statement‟s only relevance was for the proof of what Mr. Wilson
told Lt. Nicholas.
We find the argument concerning the date of Mr. Wilson‟s interview to be in
error. While it is dated October 23, 2007, a clear reading of the statement
establishes that it was taken the same day as the shooting. Lt. Nicholas specifically
asked Mr. Wilson if “last night or early this morning, were you at the sports bar
where some shots were heard and somebody being shot?” When Mr. Wilson
5 acknowledged he was present at the shooting, Lt. Nicholas followed up by asking
Mr. Wilson to tell him what happened “last night.” (Emphasis added).
We find no error in the trial court allowing Lt. Nicholas to testify concerning
the content of Mr. Wilson‟s statement to him. Additionally, even if Mr. Wilson‟s
statements could be construed as inadmissible hearsay, three other eyewitnesses
(Mr. Fontenot, Mr. Wilson, and Mr. Thomas) all testified at trial that they saw the
defendant fire a gun in the direction of the victim. “[T]he introduction of
statements complained of as hearsay which are merely corroborative and
cumulative of other testimony presented by the state is harmless error.” State v.
Hawkins, 90-1235, p. 14 (La.App. 4 Cir. 9/15/95), 667 So.2d 1070, 1080 (citing
State v. Hall, 624 So.2d 927, 930 (La.App. 2 Cir.), writ denied, 629 So.2d 1182
(La.1993), and State v. Franklin, 520 So.2d 1047, 1053 (La.App. 3 Cir. 1987)).
We find no merit in this assignment of error.
Assignment of Error Number Two
This assignment of error relates to conversations that occurred on the first
day of the bench trial after the trial court had recessed for the day. On the second
day of trial, the state attempted to introduce evidence concerning the content of
these conversations over the objections of the defendant‟s trial counsel. Basically,
the state attempted to introduce the content of a conversation between the
defendant and the district attorney through the testimony of Officer David Monier
of the Evangeline Parish Sheriff‟s Office; and to introduce the content of a
conversation between the defendant and Officer Joseph Pelloquin of the
Evangeline Parish Sheriff‟s Office through the testimony of Officer Pelloquin.
Officer Pelloquin was the officer responsible for transporting the defendant
between the courthouse and the parish jail and watching over him during trial; and
6 Officer Monier was the courthouse security officer and who was present during the
meeting between the defendant and the district attorney.
The assistant district attorney informed the trial court that she intended to
offer into evidence statements of the defendant made to the district attorney in the
afternoon meeting held the day before. The meeting came about, according to the
assistant district attorney, at the request of the defendant after learning that his
codefendant had accepted a plea offer from the state. The defendant‟s trial counsel
objected to the introduction of the statements, asserting that these were plea
negotiation statements and, therefore, inadmissible.
Immediately thereafter, the trial court informed the assistant district attorney
that “I would suggest you don‟t” attempt to offer this particular evidence. The trial
court followed that comment by informing the assistant district attorney that the
introduction of any conversations involving the defendant that might be overheard
when the defendant was talking with his attorney would not be allowed; and that
the trial court was “gravely concerned” about the introduction of any elements of
the conversation between the defendant and the district attorney. The trial court
further stated that:
And again, I don‟t know the circumstances around this meeting. If there was an expectation of privacy, then I‟m going to honor it. If there was no expectation of privacy. . .For example if [the defendant] was read his rights and told, “Anything you say can and will be used against you in a Court of law. . .”
The trial court went on to explain that:
My understand [sic] is that the meeting. . .And this is from y‟all coming in and saying, “Can I have more time because we have a meeting. We want to talk.” Okay. That the conversation between [the defendant] and [the district attorney] was in the form of a negotiation. . .a plea bargain negotiation. And the question becomes is there an expectation of privacy when you‟re dealing in a plea bargain negotiation. And that‟s what I‟m gonna have to make a decision on.
7 And I‟m gonna need some background before I decide if I want to hear this and how much weight I‟m gonna give this.
The defendant‟s trial counsel informed the trial court that the defendant had
not been given his Miranda rights prior to the meeting with the district attorney,
and the state acknowledged this to be true. However, citing State v. Ross, 95-1798
(La. 3/8/96), 669 So.2d 384, the state asserted that because the defendant was not
in a custodial environment the statements should be admissible because even if the
defendant was in custody, spontaneous and voluntary comments were admissible.
The defendant asserted in response that he had an expectation of privacy at all
times during the discussions. The trial court noted that terms of plea negotiations
were not admissible, to which the state agreed. The trial court distinguished Ross,
669 So.2d 384, from the current case in that Ross was being booked when he made
the spontaneous comments, and the defendant in this matter was contending that he
was in plea negotiations.
In summarizing its position, the trial court made the following ruling:
I‟ll listen to any testimony, but I‟m not gonna include it. And I‟m not gonna consider it if I feel it‟s part of a plea negotiation of [the defendant]. That‟s just my ruling. I feel that that‟s his right, and I‟m not gonna deprive him of his right in this particular case.
The state then presented the testimony of the two officers.
Officer Pelloquin testified that following the meeting with the district
attorney, the defendant asked him whether he thought [the defendant] “should say
he had a gun in his hand or if he should say he didn‟t have a gun in his hand.”
According to the officer, the defendant also asked him “if he should tell his people
testifying for him to say he had a gun in his hand and he shot in the air or that he
didn‟t have a gun in his hand at all.” The officer further testified that the defendant
commented that his codefendant got a good deal and that the defendant also said
8 “that he didn‟t know whether to admit he had a gun depending on what [the district
attorney] wanted to hear to whether he could get that same deal[.]”
Officer Monier testified that he recalled the defendant requesting the
meeting with the district attorney and that he and the defendant‟s trial counsel were
present at the meeting. He recalled that the defendant “was telling [the district
attorney] his side of the story,” and that he heard some talk “as to what might have
been offered [the defendant] prior to this trial in the way of a plea bargain.” At
some point thereafter, he was asked to leave the room.
Upon completion of this testimony, the state again asserted that the purpose
of the meeting was not to reach a plea agreement, but to give the defendant the
opportunity to speak to the district attorney “off of the record.” The state asserted
that the only plea negotiations occurred prior to trial and ended with no agreement.
On the other hand, the defendant‟s trial counsel informed the trial court that he and
the defendant were asked to meet with the district attorney the day it was decided
the trial would be a bench trial, which was the day before the trial began. He said
his client waited most of the day but was never able to see the district attorney.
When trial began the next day, the defendant requested that his trial attorney
inquire as to why the district attorney wanted to speak with them the day before.
This inquiry prompted the actual meeting with the district attorney which the
defendant‟s trial counsel thought was to be an effort at plea negotiations. He
acknowledged that security personnel were present, but he still he believed the
communications were to be privileged. His belief that the meeting was for plea
negotiations was supported by the fact that plea bargain discussions were a part of
the meeting with terms being offered and considered. In summary, the defendant‟s
trial counsel stated:
9 I felt we had a. . .sort of an unspoken agreement that we were talking turkey, and we were talking in confidence with each other and that. . .The thought didn‟t occur to me that this would later come back and be used against my client because of the general practice here of relations between the defense and the District Attorney‟s office.
When questioned by the trial court as to whether a plea was discussed, the
assistant district attorney stated that she “was not privy to a lot of the conversations
between [the district attorney] and [the defendant‟s trial counsel]” but that she had
“no reason to doubt the facts as [the defendant‟s trial counsel] has set them forth.”
The trial court declared that it was not going to allow any of the proposed
testimony, finding that it was too prejudicial.
We find no error in the trial court allowing the evidence it did in order to
ascertain whether the overall evidence the state sought to introduce was
admissible. In fact, the trial court had the obligation to determine the admissibility
of the evidence, and the trial court in this matter made it very clear from the
beginning that it considered plea bargains private communications. That being the
case, the trial court concluded that the testimony offered by the state violated the
defendant‟s expectations of privacy and refused to consider it.
Nothing in the record before us indicates that what little testimony presented
attributed to the trial court‟s determination that the defendant was guilty of the
offense charged. In fact, in the case of a bench trial, a trial judge, by virtue of his
training in the law, is able to disregard improperly introduced evidence which is
possibly prejudicial. Any error in this case would be harmless as the verdict was
surely not attributable to the error. See State v. Crothers, 278 So.2d 12, (La. 1973),
cert. denied, 414 U.S. 1096, 94 S.Ct. 731 (1973), and State v. King, 96-1303
(La.App. 3 Cir. 4/2/97), 692 So.2d 1296.
10 In summary, the record before us establishes that the trial court did not err in
the rulings raised in the defendant‟s assignments of error. When there is no error,
counsel‟s performance cannot be construed as ineffective for failure to raise the
issues on appeal. Hines v. Louisiana, 102 F. Supp. 2d 690 (E.D. La. 2000).
DISPOSITION
For the foregoing reasons, we again affirm the defendant‟s conviction in all
respects.
This opinion is NOT DESIGNATED FOR PUBLICATION Uniform Rules—Courts of Appeal, Rule 2-16.3