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State v. Neely

Court of Appeals of Louisiana, Fourth Circuit

May 27, 2015

STATE OF LOUISIANA
v.
ANDREW NEELY, JR

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 513-949, SECTION " H" . Honorable Camille Buras, Judge.

Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, Marrero, LA, COUNSEL FOR DEFENDANT/APPELLANT.

(Court composed of Judge Paul A. Bonin, Judge Daniel L. Dysart, Judge Madeleine M. Landrieu).

OPINION

Page 1023

[2014-1161 La.App. 4 Cir 1] Daniel L. Dysart, J.

Andrew Neely, Jr., was charged with a violation of La. R.S. 14:62.8(B)(3), home invasion in the presence of a child under the age of twelve years. An Orleans Parish Jury found Neely guilty as charged, and he was subsequently adjudicated a second felony offender. The trial court sentenced Neely to fifteen years at hard labor, ten years of which to be served without the benefit of probation, parole or suspension of sentence, with credit for time served.

Neely argues on appeal that the trial court erred in granting the State's Motion

Page 1024

in Limine to disallow extrinsic evidence to show witness bias and, that the trial court erred in denying his motion for a downward departure from the mandatory minimum sentence.

For the reasons that follow, we affirm the conviction and sentence.

PROCEDURAL HISTORY:

On October 7, 2012, the defendant, Andrew Neely, Jr., was charged with one count of home invasion, in violation of La. R.S. 14:62.8. After finding probable cause and denying the defendant's Motion to Suppress Statement, the State amended the bill of information to charge defendant with home invasion in the presence of a child under the age of twelve years, La. R.S. 14:62.8(B)(3).

[2014-1161 La.App. 4 Cir 2] Defendant filed a Motion in Limine to use extrinsic evidence to show witness bias, while at the same time, the State filed a motion seeking to exclude the same evidence the defendant sought to use. Defendant's motion was denied while the State's motion was granted. Defendant filed an application for a supervisory writ with this Court, which was denied.[1] A jury trial was conducted on November 11-12, 2013, but the jury could not agree on a verdict. The jury was dismissed, and a mistrial was declared.

A second jury trial was conducted on March 10-12, 2014, wherein the defendant was found guilty as charged, and was thereafter adjudicated a second felony offender. The defendant filed a motion for downward departure from the mandatory minimum sentence, which the trial court denied. He was sentenced to fifteen years at hard labor, with ten years without the benefit of probation, parole or suspension of sentence. The defendant was given credit for time served.

FACTUAL BACKGROUND:

The testimony at trial reflected that the victim, Brianna Moret, lived at 6607 Foch Street in New Orleans, along with her fiancé and their daughter, who was two years old at the time. On September 5, 2012, Hurricane Isaac impacted the New Orleans area, and many residents of Ms. Moret's neighborhood who evacuated, had not yet returned. Ms. Moret testified that she and her daughter were home alone that evening watching television when she heard someone walk up to her front door and jiggle the door knob, and saw the door knob move. Ms. Moret immediately called 911. She looked through the front door peephole, but as it was dark out, she could not see the person's face clearly. She testified that in the dark, [2014-1161 La.App. 4 Cir 3] the person appeared to be dressed all in black. Remaining on the phone with the 911 operator, she sought refuge in the garage. She saw a silhouette of a man run past her kitchen window, then told the 911 operator that she heard footsteps by the back door, and saw her back door knob being jiggled. She then heard her back door being kicked in, and the defendant chased her through the house, with her daughter in her arms. Ms. Moret ran out the front door as the NOPD officers arrived. She saw the defendant run away, slip, then get up and run towards the corner as he was pursued by police officers.

The 911 recording was played to the jury and gave a chilling account of the entire event, as related by Ms. Moret to the 911 operator. During the 911 call, the terror and panic in Ms. Moret's voice is evident as she narrates the defendant's actions in attempting entry to her front door, then forcing entry ...


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