State v. Brown

264 So. 3d 697
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2019
DocketNo. 52,501-KA
StatusPublished

This text of 264 So. 3d 697 (State v. Brown) 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. Brown, 264 So. 3d 697 (La. Ct. App. 2019).

Opinion

BLEICH, J. (Pro Tempore )

*699This criminal appeal arises from the Fifth Judicial District Court, Parish of Richland, the Honorable Glen Strong presiding. After a jury trial, Defendant Larry R. Brown, Jr., was found guilty as charged of the second degree murder of Michael Bradley and possession of a firearm by a convicted felon. Brown was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the second degree murder conviction, and ten years imprisonment at hard labor on the possession of a firearm by a convicted felon conviction. He was given credit for time served in actual custody prior to imposition of sentence, and the sentences were ordered to run concurrently. A timely filed motion to reconsider sentence was denied. Brown has appealed, asserting only that the trial court erred in denying his motion to continue the trial. Brown's convictions and sentences are affirmed.

FACTS

On November 19, 2015, Defendant Larry R. Brown, Jr., was charged by bill of indictment with the September 28, 2015, second degree murder of Michael Bradley. Brown pled not guilty, and the Indigent Defender Board was appointed to represent him. On January 26, 2016, defense counsel filed a motion for discovery. On February 25, 2016, Brown filed a pro se motion for speedy trial, which was never adopted by defense counsel, and this motion was set for hearing on March 30, 2016.1 In April 2016, Brown filed pro se requests for court minutes, which were provided to him; for a police report and affidavit, which was denied as not in the custody of the clerk; and for the transcript of the March 30, 2016 hearing on the motion for speedy trial, which was granted. On May 23, 2016, the state filed its initial response to discovery, and on March 3, 2017, it filed a supplemental response to discovery.

On May 5, 2017, Brown was charged in a separate docket number by bill of indictment with possession of a firearm by a convicted felon in connection with the murder of Bradley.

On January 3, 2018, the district attorney filed an amended indictment for the sole purpose of consolidating the two charges.2 At the time of the filing of the amended indictment, Brown had been arraigned on both charges.

On January 24, 2018, the state filed a La. C. Cr. P. article 768 Notice3 advising *700that it intended to introduce statements made by Brown to investigators, as well as statements made by Brown to witnesses Danielle Collins, Rosemary Cleveland, Terrance Miles, Robert Earl Miles, and Amanda McKenzie. Transcripts of the statements of Danielle Collins, Terrance Miles, and Robert Miles were produced to the defense in the state's initial discovery responses of May 23, 2016. Transcripts of the statement of Amanda McKenzie were produced in the state's supplemental response to discovery of March 3, 2017. The record does not indicate that a transcript of any statement of Rosemary Cleveland was produced to the defense prior to the article 768 notice. On February 5, 2018, the state filed a supplemental article 768 notice indicating its intent to introduce additional statements made by Brown to Rosemary Cleveland during a jailhouse phone conversation. The notice indicates that this information was obtained during an interview with Ms. Cleveland the day before the notice, on Sunday, February 4, 2018.

In the meantime, on January 31, 2018, defense counsel filed a motion to continue and reset the trial that was scheduled for February 5, 2018. The motion cited the extended illness of IDB investigator Jamie Hudson and alleged that the IDB had been without an investigator "for a number of months" due to Hudson's illness. Brown alleged "a number of issues that need to be addressed which require an investigator," including statements allegedly made by Brown as noted in the state's initial Article 768 notice. The motion was heard that same day.

During the hearing, defense counsel noted the illness and absence of Hudson. Counsel stated that this was the first continuance sought by the defense and contended that there would be no prejudice to the state if the motion was granted. Counsel cited the state's Article 768 notice and argued to the court that he had "been given" the names of several witnesses, and he did not know where they lived, and he "would love to have an investigator go out and talk to these people and tell me what - what he feels they're going to say and interview them...." Counsel also noted that the state's eyewitness had been appointed new counsel, and this weighed in favor of the continuance.

The district attorney countered by first noting that the state would be prejudiced by a continuance due to the increased chance of losing witnesses, memories fading, and other problems and health issues of certain unnamed witnesses. The district attorney then emphasized that the case was two years old and referenced the fact that in 2016, Brown had filed a motion for speedy trial indicating his readiness to proceed to trial. The district attorney pointed out that defense counsel had questioned the lead investigator the previous year at the bond reduction hearing. He further noted that the state had complied with all discovery in prior years by providing all of the information necessary for defense counsel to investigate and prepare for trial. The district attorney argued that there was ample time to investigate prior to Hudson's illness, and at no time did the IDB make a request for another investigator during Hudson's illness.

John Ellis, the newly appointed Chief Public Defender, also addressed the trial court. Ellis explained that he had been recently told by the interim chief that Hudson had been ill, and, after further inquiry, he learned that Hudson had passed away. Ellis advised that he then took immediate steps to hire a new investigator. He also informed the court that his *701office was not in possession of the files on which Hudson had been working. Ellis advocated in favor of allowing Brown the benefit of the new investigator's services.

Following argument the trial court denied the motion to continue, explaining as follows:

Okay. Usually within forty-eight hours or seventy-two hours I think an attorney's appointed, I don't know was appointed in that particular situation, but an attorney has been on this case virtually from the moment of arrest. There has been as [defense counsel] stated Mr. Hudson, the former investigator was an outstanding investigator. He was - I don't know exactly who he was working for when I was serving full time as judge but he was in court virtually every time had court on some case, both as an investigator for the Public Defender's Office and as a private investigator on his own right in some domestic cases. And in a domestic case that I dealt with a couple of weeks ago he was the investigator until very recently on that case, so there has been an investigator in the case for almost two years. I think Mr. Hudson - I saw his obituary, I noticed he had passed away over the weekend, I think his funeral was Monday. But I understand that he was - actually had made a court appearance two weeks prior to that. He was, as [defense counsel] argued in chambers, had had made several trips to Colorado for some type of medical treatment but he was still active and working the case.

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Bluebook (online)
264 So. 3d 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-lactapp-2019.