State v. Brady

524 So. 2d 1356, 1988 WL 35501
CourtLouisiana Court of Appeal
DecidedApril 19, 1988
DocketKA 87 1207
StatusPublished
Cited by8 cases

This text of 524 So. 2d 1356 (State v. Brady) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brady, 524 So. 2d 1356, 1988 WL 35501 (La. Ct. App. 1988).

Opinion

524 So.2d 1356 (1988)

STATE of Louisiana
v.
Mark BRADY.

No. KA 87 1207.

Court of Appeal of Louisiana, First Circuit.

April 19, 1988.
Rehearing Denied June 6, 1988.

*1357 Bryan Bush, Dist. Atty., Baton Rouge by Don Wall, Asst. Dist. Atty., for plaintiff/appellee.

Otha Curtis Nelson, Baton Rouge, for defendant/appellant.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

EDWARDS, Judge.

Mark Brady was convicted of two counts of armed robbery, in violation of LSA-R.S. 14:64. He received two concurrent sentences of twenty-five years at hard labor, without benefit of parole, probation, or suspension of sentence. We remanded defendant's first appeal to the trial court for the correction of several patent errors. See State v. Brady, 506 So.2d 802 (La.App. 1st Cir.1987). Those patent errors have been corrected, and the instant appeal is now properly before this Court.

FACTS

The defendant was convicted of the armed robberies of Betty Bergeron and Sonya Cambre, employees of the DiMattia Insurance Company of Baton Rouge, Louisiana. On September 16, 1985, the women were robbed in the insurance company office by two black men, each of whom carried a handgun. The women testified that the robbers walked into the office with their *1358 faces covered and their guns drawn. The defendant ordered Ms. Bergeron to open her desk, which contained approximately $150.00 in cash, and to give the money to him.

The defendant's companion then ordered Ms. Bergeron and Ms. Cambre to give him their jewelry and cash. He took two rings from Ms. Bergeron, worth approximately $6000.00, and about $10.00 in cash. Ms. Cambre lost several items of jewelry worth approximately $3000.00. Both women testified that they were able to see the faces of the robbers as the men left. The defendant was subsequently identified through a photographic lineup and was positively identified by both victims in court.

The defendant testified that on September 16, 1985, he worked for his father from 6:00 A.M. to 1:00 P.M. Albert Heard, a friend of the defendant who also worked for the defendant's father in September of 1985, corroborated the defendant's alibi testimony. The defendant's father, Arthur Brady, Sr., testified that he was in the scrap iron business and that his son worked for him every weekday. Mr. Brady testified that he picked up the defendant and Albert Heard about 6:00 A.M. every morning and dropped them off at his house, where they worked until they had finished the tasks assigned to them. However, Mr. Brady also testified that he had another job during the day and, therefore, was not present with the defendant and Albert Heard and could not specifically say where the defendant was at 11:00 A.M., the time the robbery occurred.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the defendant argues that he was denied a fair trial because the first photographic lineup viewed by the victims was not admitted into evidence.

Ms. Bergeron testified the first lineup contained small, black and white photos from which she was unable to identify the robbers. However, the second lineup was made up of larger, color photos which enabled her to identify the defendant. The record reflects that the defendant originally objected to testimony by Ms. Bergeron about the second photographic lineup because of the leading nature of the State's questions. Thereafter, the trial court asked whether or not the defendant's photograph was in the first lineup and, upon finding that no one knew, ordered the State to provide the first lineup as possible Brady evidence.

Despite the trial court's order, the first lineup was not admitted into evidence. Officer Bart Thompson testified that he did not keep the first lineup because no one was identified from it. However, both of the victims testified they had seen it and had attempted to identify a suspect from it. At trial, they each identified the defendant and related his role in the robbery. We find, therefore, that the defendant was not prejudiced by the State's failure to locate and present the first photographic array after being ordered to do so, nor did the trial court err in permitting Ms. Bergeron to testify about the second photographic array.

Officer Greg Phares testified that he brought the second lineup to the Dimattia Insurance Company office and displayed the photographs to Ms. Bergeron on October 10, 1985. The name of each participant in the array was written on the back of each photograph; however, the victim was not allowed to see the name until an identification was made. Officer Phares testified that neither he nor Officer Frank Paixao, who accompanied him, suggested the suspected culprit in any way. Officer Phares further testified that Ms. Bergeron closely studied each of the photographs before identifying the defendant. Accordingly, we find that defendant did not bear his burden of proving that the photographic lineup was unduly suggestive. See LSA-C.Cr.P. art. 703 (C); State v. Vaughn, 378 So.2d 905 (La.1979).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, the defendant argues that he should have been *1359 discharged from his bond obligation because his right to a speedy trial was violated. The remedy provided by LSA-C.Cr.P. art. 701(D) is an interim remedy. Once brought to trial, the defendant is no longer entitled to release from his bond obligation. Accordingly, this issue is moot.

The defendant also asserts that he was denied his constitutional right to a speedy trial and was, therefore, entitled to discharge from his bond obligation. Discharge of bond obligation is not the remedy for denial of the constitutional right to a speedy trial. Depending upon the circumstances, an accused whose right to a speedy trial is violated might be entitled to dismissal of the prosecution. However, we do not find that the defendant was entitled to dismissal of the charges in the instant case.

The constitutional right to a speedy trial attaches when an individual becomes an accused, either by formal indictment or bill of information, or by arrest and actual restraint. State v. Pleasant, 489 So.2d 1005, 1010 (La.App. 1st Cir.), cert. denied, 493 So.2d 1218 (La.1986). In determining whether or not this constitutional right has been violated, no fixed time period is determinative. Rather, the conduct of both the prosecution and the defense are viewed in light of several factors: the length of the delay, the reason for the delay, the defendant's assertion of his right, and the actual prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The peculiar circumstances of each case determine the weight to be ascribed to the length and reasons for the delay.

The instant offense occurred on September 16, 1985; and the defendant was arrested on or about October 10, 1985. The bill of information was filed on November 27, 1985; and the defendant was arraigned on December 6, 1985. Trial began March 31, 1986. The defendant was charged with two counts of armed robbery, a serious felony. Thus, it does not appear that the length of time was unreasonable; rather, in light of the seriousness of the offense, a delay of five months and three weeks appears to be minimal.

The second factor to consider is the reason for the delay. Part of the delay seems to have been caused when the case was reassigned to a different section of Criminal Court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Jones
76 So. 3d 1274 (Louisiana Court of Appeal, 2011)
State of Louisiana v. Wayne K. Jones, Jr.
Louisiana Court of Appeal, 2011
State v. Keller
859 So. 2d 743 (Louisiana Court of Appeal, 2003)
State v. Walton
738 So. 2d 36 (Louisiana Court of Appeal, 1999)
State v. Hebert
688 So. 2d 612 (Louisiana Court of Appeal, 1997)
State v. Banks
694 So. 2d 401 (Louisiana Court of Appeal, 1997)
State v. Lee
577 So. 2d 134 (Louisiana Court of Appeal, 1991)
State v. Bessonette
574 So. 2d 1305 (Louisiana Court of Appeal, 1991)
State v. Junior
542 So. 2d 23 (Louisiana Court of Appeal, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
524 So. 2d 1356, 1988 WL 35501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brady-lactapp-1988.