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State v. Green

Supreme Court of Louisiana

June 29, 2017

STATE OF LOUISIANA
v.
THAYER GREEN

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

          CLARK, J.

         Defendant, Thayer Green, was adjudicated a third felony offender and sentenced under the Habitual Offender Law[1] to a term of life in prison without the benefit of parole, probation or suspension of sentence, for a home invasion committed as a juvenile. We granted certiorari to consider whether the United States Supreme Court's decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed. 825 (2010), which held the Eighth Amendment prohibits juvenile offenders convicted of non-homicide offenses from being sentenced to life without parole, applies to an enhanced single sentence of life in prison without parole under the habitual offender statute.[2] For the reasons that follow, we hold Graham is, indeed, applicable to a defendant who is adjudicated and sentenced as a habitual offender to life without parole for an offense committed as a juvenile. Therefore, we amend defendant's life sentence under the Habitual Offender Law to delete the restriction on parole eligibility and direct the Department of Corrections to revise defendant's prison masters according to the criteria in La. R.S. 15:574.4(D) to reflect an eligibility date for consideration by the Board of Parole. Furthermore, we remand the matter to the trial court for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         The record indicates that the 17-year-old victim, K.L., and the 17-year-old defendant, who had dated previously and had a child together, had been communicating by text messages in the days preceding the offense on July 10, 2012. Early that morning, K.L. was sitting with a male friend in his car, which was parked at the apartment complex where she was staying with her cousin, Jessica Williams. Ms. Williams's younger sister, R.W., was also staying at the apartment.

         While in her friend's car, K.L. saw the defendant circle the parking lot in his mother's Toyota Camry. To avoid a confrontation, she exited the car and ran to her cousin's second-floor apartment. Defendant stopped, left his vehicle running, and pursued her.

         Once inside, K.L. tried to shut the door but defendant pushed in, knocking her to the floor. He then grabbed K.L. by the hair and punched her. K.L. screamed and told R.W., who had been sleeping on the couch, to call police. Defendant continued to punch, kick and choke K.L., and then grabbed a metal candlestick and struck her about the face and head. Ms. Williams, who had been asleep in her bedroom, was awakened by screams and hid in a closet to call 911. When she emerged from her room and told the defendant that she had called 911, he grabbed R.W.'s cell phone from her hand and fled. The police apprehended defendant shortly thereafter.

         Defendant was charged with three counts: (1) home invasion, La. R.S. 14:62.8; (2) armed robbery, La. R.S. 14:64; and (3) aggravated battery, La. R.S. 14:34. On the second day of trial, the state disclosed that it had downloaded approximately 635 pages of text messages, which were extracted from the defendant's cell phone and contained numerous text messages exchanged between him and K.L. from April 12, 2012, through July 10, 2012, the date of the offenses. The trial court delayed the start of trial to give defense counsel time to review the messages, but denied defendant's motion for mistrial based on the late disclosure.

         Following trial, the jury found defendant guilty as charged of home invasion, and returned the responsive verdicts of guilty of simple robbery and guilty of second degree battery. The trial court denied defendant's motions for post-verdict judgment of acquittal and new trial, revoked his probation for two prior felony convictions, and sentenced him to ten years imprisonment at hard labor as to the home invasion count, and to four years imprisonment at hard labor each for the simple robbery and second degree battery convictions. The trial court ordered the sentences to run consecutively.

         The state sought to enhance the sentence for the home invasion conviction by filing a habitual offender bill of information.[3] Defendant filed a written denial and moved to quash the multiple bill, arguing the two predicate convictions were entered on the same date in 2012. Following a hearing, the trial court adjudicated defendant a third felony offender and resentenced him on count one to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The trial court subsequently denied the defendant's motion to reconsider sentence on excessiveness grounds.

         Defendant appealed. The court of appeal, in an unpublished opinion, affirmed defendant's convictions, habitual offender adjudication, and sentences. State v. Green, 15-0308 (La. App. 1 Cir. 12/17/15) (McClendon, J., dissents in part with reasons). Judge McClendon dissented from the majority's refusal to address whether the life sentence without parole under the habitual offender statute violates Graham.

         The defendant applied for a writ of certiorari seeking a review of his convictions and sentences.

         DISCUSSION

         Defendant raises two assignments of error, encompassing three specific issues: (1) disclosure of exculpatory evidence/Brady [4] violation; (2) illegal sentences; and (3) excessive sentences. We will consider each issue separately.

         Disclosure of exculpatory evidence/ Brady violation

         The defense and the state dispute the significance and impact of the state's late disclosure, during voir dire, of the text messages exchanged between defendant and K.L. that the state obtained from defendant's cell phone. Defendant unsuccessfully moved for a mistrial, and later for a new trial, based on the late disclosure. Specifically, he claimed the messages should have been disclosed as exculpatory and/or impeachment material because some would have shown the victim had lied to the police when she said she had texted defendant before he arrived to tell him not to come over.

         The state's suppression of evidence favorable to the accused violates due process if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The Brady materiality inquiry is not "whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed. 2d 490 (1995). Pertinent here, the late disclosure of such evidence may also require a reversal if the timing significantly impacted the defendant's opportunity to effectively utilize the material. State v. Kemp, 00-2228, pp. 7-9 (La. 10/15/02), 828 So.2d 540, 545-46. However, a defendant shows no entitlement to relief if the information was available to him through other means by the exercise of reasonable diligence. See generally United States v. Newman, 849 F.2d 156, 161 (5th Cir. 1988) (government not obligated to furnish defendant with information he already has or can obtain with reasonable diligence); see also State v. Hobley, 99-3343, p. 25 n.10 (La. 12/8/99), 752 So.2d 771, 786 ("There is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.") (quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998)).

         The record indicates that defendant filed a motion for new trial on the ground that the trial court committed prejudicial error when it refused to grant a mistrial based on the late disclosure. Defense counsel learned of the state's possession of the text messages just before trial, on June 23, 2013, when counsel was informed by the defendant's family that the cell phone may contain helpful messages but had been seized by the prosecution from among the defendant's possessions at the jail. In response to counsel's inquiry about the phone's whereabouts, the state made all 635 pages available, and the trial court granted the defense a half-day recess to review them. The trial court then excluded the actual text messages from trial on the ground that their admission would have the effect of permitting defendant to testify without having to take the stand, but permitted defense counsel to read selected passages of the victim's messages to defendant during the pertinent time (without defendant's responses). The motion for new trial asserted the late disclosure constituted prejudicial error because the excluded messages were exculpatory on the home invasion count in that the "overall message from the victim on the night of the alleged incident was for [defendant] to come over to the victim's house," though she told police that she had ultimately asked him not to come over.

         In his brief to this court, defendant maintains the late disclosure caused undue prejudice because, without adequate time to review all the messages, his trial counsel was unable to use them to "present a more thorough defense" to the home invasion count by showing that the victim had "demand[ed] that he come [over]," and lied to police when she denied having asked him to visit. D. Br., p. 8; see also R., Vol. 1, p. 83. Defendant claims the omitted messages would have undermined K.L.'s credibility by showing she was manipulative and had "authorized" him to enter the apartment.

         The state counters that the lower courts correctly rejected this claim because: the messages were made available to the defense, and the record contains nothing to indicate that defendant himself could not have obtained them earlier by exercising reasonable diligence; thus, there was no suppression. Further, defendant can show no prejudice because defense counsel effectively utilized information from the text messages at trial. Finally, the state asserts the court of appeal correctly found all of the text messages unreviewable because neither party introduced them at trial.

         While we agree with the state that the court of appeal did not err in finding that all 635 pages were not subject to review because they were not introduced into evidence, we find the court erred in declining to entertain the arguments and evidence offered in the trial court in litigating the defendant's motions for mistrial and new trial. Cf. La.C.Cr.P. art. 841. Nevertheless, we conclude both lower courts reached the correct result in rejecting this claim.

         Though a late disclosure of favorable evidence may give rise to a meritorious Brady claim, defendant shows no entitlement to relief on this basis. The defense filed a motion for discovery and inspection of evidence, pursuant to La. C.Cr.P. art. 716, et seq., on August 21, 2012. The state responded on October 30, 2012, by providing copies of the police report and photographic evidence and asserting that "[a]ny other evidence may be viewed by appointment" with the district attorney's office. The record also indicates the state gained possession of the text messages from defendant's phone thereafter, on November 8, 2012, over six months before trial.

         Defendant cannot show that the trial court abused its discretion in rejecting this Brady claim, given the messages were available to the defense through the exercise of reasonable diligence. Defendant's belief that his own phone contained helpful messages was certainly known to him at the time of his arrest, and the defense fails to explain why they waited until the eve of trial to attempt, for the first time, to retrieve and examine the messages. Reasonable diligence would have entailed defense counsel specifying that the text messages were an intended target of discovery and, after receiving the state's response with the open invitation to view any other evidence by appointment, counsel making an appointment to review the messages. Notwithstanding the state's failure to inform the defense when it obtained the phone's contents, defendant could have sought to obtain the messages of which he was aware and of which he ...


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