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State v. Mahogany

Court of Appeals of Louisiana, Fourth Circuit

July 26, 2017

STATE OF LOUISIANA
v.
GREENVILLE MAHOGANY

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 511-729, SECTION "B" Honorable Tracey Flemings-Davillier, Judge

          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY Kyle C. Daly ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR APPELLEE/STATE OF LOUISIANA

          Sherry Watters LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Paula A. Brown

          Rosemary Ledet, Judge

          In this criminal appeal, Greenville Mahogany appeals his convictions for attempted second degree murder, in violation of La. R.S. 14:27(30.1), and discharging a firearm during a violent crime, in violation of La. R.S. 14:94 F, and his sentences. For the reasons that follow, we affirm.

         STATEMENT OF THE FACTS [1]

         On December 19, 2011, at about 1:45 p.m., Mr. Brazile was shot in the hip while inside his vehicle on the corner of Mayo and Morrison Roads in New Orleans, Louisiana. The shooting was believed to be connected to an earlier November 2011 shooting, which Mr. Brazile had survived, and an October 2011 altercation. A brief summary of the October 2011 altercation and the November 2011 shooting is necessary to set the backdrop for the December 19, 2011, shooting at issue here.

         Both the October 2011 altercation and the November 2011 shooting occurred at the Sports Café on Downman Road in New Orleans East. Both Mr. Brazile and Mr. Mahogany testified at trial that they were employed as promoters.[2]Each of them explained that they had an arrangement with the Sports Café, albeit on different days of the week, to use it as a venue for their promotions. Mr. Brazile's day was Saturday; Mr. Mahogany's day was Friday. On those days, they each used the Sports Café as a venue for a regular event in exchange for a take of the admissions at the door. Mr. Brazile testified that he was the chief executive officer of Life and Death Record Company and that his job included acting as a promoter staging music concerts. On Saturday nights, he used the Sports Café as the venue for his music concerts. Mr. Mahogany testified that he too was a promoter and that he used the Sports Café on Friday nights for his party nights for his group, Blowing Money Fast ("BMF"). Mr. Mahogany denied any rivalry between his and Mr. Bazile's promotions.

         Both Mr. Brazile and Mr. Mahogany were at the Sports Café on the night of October 9, 2011. Mr. Brazile had an event there that night. At about midnight, Mr. Brazile saw his god-brother-Rashad Hall-and another man-later identified as Mr. Baham-engaged in a verbal altercation. Mr. Hall told Mr. Brazile that he did not know Mr. Baham. According to Mr. Brazile, Mr. Baham then joined a group of about six to eight men. Mr. Baham's group then gathered together in a "huddle." Mr. Brazile recognized Mr. Mahogany as one of the men in that huddle. Thereafter, Mr. Baham approached Mr. Brazile and told him "it's going down when I leave out the club." Fearing that Mr. Baham would attack him after he left the Sports Café, Mr. Brazile hit Mr. Baham in the face while exiting the Sports Café and then ran. Mr. Brazile encountered the police in the parking lot and explained to them that he was threatened by someone in the Sports Café; the police advised Mr. Brazile to leave the area.

         On November 20, 2011, Mr. Brazile and Mr. Mahogany again were both at the Sports Café. Mr. Brazile had another event there that night. At about 2:30 a.m., Mr. Brazile first noticed Mr. Mahogany, who Mr. Brazile recognized as Mr. Baham's associate, and another man walk through the club. Mr. Brazile explained that he thought it was unusual that they were there so late since he had not seen them there earlier. Because he was uncomfortable in Mr. Mahogany's presence, Mr. Brazile told his friends that it was time to leave. When he walked to his car in the parking lot, Mr. Brazile spotted Mr. Mahogany leaning on the vehicle parked in front of his car. As Mr. Brazile fumbled for his keys in his pockets, he heard a noise come from the area where Mr. Mahogany was located. Mr. Brazile then saw Mr. Baham appear through the fog, running towards him holding a gun. As Mr. Brazile turned and ran, he heard gun shots and discovered that he was wounded in his side and back. Mr. Brazile then went to a service station on Dwyer and Downman Road, where he collapsed. He spent four days in a hospital.

         After Mr. Brazile was released from the hospital, he conducted internet research on Facebook as to the identity of Mr. Baham's group-the BMF. Mr. Brazile explained that he saw pictures of Mr. Baham on the website; he memorized some of the names, but not the faces, of some of the people in Mr. Baham's photographs. He testified that he provided that information to the police.[3]

         Again, the crime at issue here is the shooting that occurred on December 19, 2011. Between 12:00 p.m. and 1:00 p.m. that day, Mr. Brazile left his girlfriend's residence on Mayo Street to go to McDonald's to get food for his children. On his way back home, he stopped to speak with his friend, "Josh, " in the parking lot of a mechanic shop on the I-10 Service Road and Morrison Avenue. While talking to Josh, Mr. Brazile noticed a white Dodge Charger enter the parking lot and drive past them. There were two men in the Charger. He testified that the driver, later identified as Mr. Williams, looked out the window at him with a menacing look, like "he's still alive." At that point, he did not see the passenger. The Charger stopped at the opposite end of the parking lot and waited. Because he felt that the men in the Charger had something to do with the November 2011 shooting, Mr. Brazile told Josh that he had to leave. Mr. Brazile got into his car and drove out of the parking lot. As he pulled out, he saw a blue Explorer with four passengers pull into the lot. According to Mr. Brazile, he recognized Mr. Baham as a passenger in the Explorer.

         When he left the parking lot, Mr. Brazile noticed that the men in the Charger were following him down the service road. Mr. Brazile turned onto Mayo Road. As he turned a corner near Morrison and Mayo, a grass cutting truck was blocking the street. Mr. Brazile was unable to maneuver around the truck; his passage was blocked. At that point, the Charger pulled parallel to Mr. Brazile's vehicle; and the passenger, later identified as Mr. Mahogany, fired shots at Mr. Brazile. Mr. Brazile testified that he ducked and began alternatively "hitting the gas, hitting the brakes" until the Charger passed his vehicle. The men in the Charger then sped from the scene. Mr. Brazile drove a short distance to his girlfriend's residence, and his girlfriend called 911. Mr. Brazile was taken to the hospital by ambulance.

         Mr. Brazile's hospital stay lasted about four hours; his injury did not require any surgical repair. During his hospital stay, two NOPD officers testified that they interviewed Mr. Brazile-Detective Borjius Guient, the lead investigating officer, and Officer Donald Blackwell, the initial investigating officer.[4]

         Officer Blackwell explained that his involvement in this case consisted solely of speaking with Mr. Brazile at the hospital on the date of the shooting. Officer Blackwell described Mr. Brazile as cognizant and lucid. Officer Blackwell summarized Mr. Brazile's statement to him of what happened as follows:

Basically, he told me he was standing outside of Gabby's with a friend. They saw a white vehicle pull up. I believe it was a Dodge Charger pull up. Once the car pulled up, the friend asked was that Greenie, the person who shot him in the past. He said yes. A short time later Mr. Brazile walked away, got into his vehicle. Sometime after that, the white Charger started to follow. Greenie pulls on side. The friend that was in the car with Greenie was Junior, I believe, and he started opening fire on him.

         Officer Blackwell further testified that Mr. Brazile denied having returned fire or shots at the Charger.

         Detective Guient testified that he too interviewed Mr. Brazile at the hospital on the day of the shooting. Mr. Brazile told him that he got a good look at the driver and the passenger in the Charger and provided him with the two occupants' nicknames-Greenie and Ace or Junior. (Ace and Junior were nicknames for the same person.). Officer Guient, however, acknowledged that Mr. Brazile changed his account of the shooting several times.[5]

         Both Detective Guient and Mr. Brazile consistently testified regarding Mr. Brazile locating a photograph of the person he identified as the shooter on Facebook a few hours after the shooting. Mr. Brazile explained that after returning home from the hospital, he went onto Facebook and looked through the pictures of Mr. Baham and the BMF group. He located a picture of Mr. Mahogany "in the same actual car that they came and shot [him] in" only hours earlier. Mr. Brazile telephoned Detective Guient and related to him that he had found this photograph on Facebook of "the person who actually fired the gun earlier that day at [him]." Officer Guient likewise testified that he too went on Facebook, located the photograph, and confirmed with Mr. Brazile that the photograph that he was viewing was the same one that Mr. Brazile was viewing. Officer Guient then downloaded the photograph and met with Mr. Brazile, who signed the photograph on January 4, 2013, identifying the photograph as depicting the shooter.[6]

          Although Officer Guient also compiled a six-person photograph lineup containing Mr. Mahogany's photograph, he had difficulty locating Mr. Brazile. At that point, Mr. Brazile had gone into hiding out of fear. Eventually, Officer Guient was able to locate him. On January 24, 2013, they met and Mr. Brazile selected Mr. Mahogany's photograph from the lineup. Mr. Brazile also signed a second downloaded photograph on that date.

         Officer Guient testified that the Charger was found within a day of the shooting and that the police determined that it had been stolen before the shooting. There was no evidence inside the Charger linking either Mr. Williams or Mr. Mahogany to the shooting. The Charger, however, had two bullet holes located on the rear side of it. The police found spent shell casings at the scene and inside the Charger. During the investigation, a weapon was recovered; however, it was unrelated to this shooting.

         Mr. Mahogany testified in his own defense and provided an alibi witness, Gaidrelle Chamberlain. He denied shooting Mr. Brazile. Indeed, he denied knowing Mr. Brazile or having any disputes with him or his friends. Mr. Mahogany also denied telling his cell mate, Mr. Murthil, that he attempted to kill Mr. Brazile. Although Mr. Mahogany acknowledged that he witnessed Mr. Brazile hit Mr. Baham with a beer bottle at the Sports Café in October 2011, he denied knowing what the problem was between Mr. Brazile and Mr. Baham or interjecting himself into their dispute. Finally, he corroborated Ms. Chamberlain's testimony regarding his alibi.

         Ms. Chamberlain testified that Mr. Mahogany was her best friend; however, she denied that he was her boyfriend. On the day of the shooting, she testified that she went to get Mr. Mahogany from his house at about 10:30 a.m. Around noon, Mr. Mahogany helped her cut the grass at her mother's house on West Laverne Street in New Orleans. They finished cutting the grass about an hour later and remained together until 2:00 or 3:00 a.m. the following morning. She testified that Mr. Mahogany did not leave her company the entire day.

         Ms. Chamberlain further testified that she was with Mr. Mahogany when he was arrested. At that time, they were en route to visit Mr. Mahogany's friend, Mr. Baham. When they arrived at Mr. Baham's apartment, the police were parked in the driveway. Mr. Mahogany exited the car and called Mr. Baham's name. When Mr. Baham saw Mr. Mahogany, he ran with two officers in pursuit. One of the officers, who originally chased Mr. Baham, returned to where Mr. Mahogany and Ms. Chamberlain were located and told them not to leave the area. Ultimately, the officer ran their names and discovered that Mr. Mahogany was wanted by the police.

         Following his arrest, Mr. Mahogany coincidentally shared a cell in Orleans Parish Prison ("OPP") with Mr. Brazile's best friend, David Murthil.[7] They were cell mates for about two months-from January to February 2012. Testifying at trial for the State, Mr. Murthil explained that he was Mr. Brazile's lifelong friend and that he had never met Mr. Mahogany before they became cell mates. Mr. Murthil displayed the tattoo on his neck, which said "East Beast, " indicating that he was from New Orleans East. Mr. Murthil further explained that Mr. Mahogany, based on the tattoo, asked him if he was from New Orleans East and if he knew "Spooney"-the nickname Mr. Mahogany attributed to Mr. Brazile.[8] When Mr. Murthil denied knowing Spooney, Mr. Mahogany related to him a story about an incident involving Spooney.

         According to Mr. Murthil, Mr. Mahogany told him the following story. First, Mr. Mahogany related that he was at the Sports Café when Spooney hit Mr. Baham with a beer bottle. Continuing, Mr. Mahogany told him that on another night after that altercation, as Spooney drove up to the Sports Café, Mr. Mahogany distracted Spooney while Mr. Baham shot Spooney. Specifically, Mr. Mahogany told him that "he took Spooney's attention while Chris [Baham] hid in the fog and jumped out the fog while he was talking to Spooney and starting shooting Spooney up." Finally, Mr. Mahogany related that Mr. Baham failed to finish the job-kill Spooney-but he heard "Spooney had some money out on his head, so him [Mahogany] and his podner Rayne [Williams] caught Spooney on Morrison and Mayo and shot him up." According to Mr. Murthil, Mr. Mahogany told him this story at least twice while they were cell mates.

         While Mr. Murthil and Mr. Mahogany were still cell mates, Mr. Murthil told Mr. Brazile, in a jail house call, the story that Mr. Mahogany had related to him. Eventually, Mr. Mahogany learned that Mr. Murthil knew Mr. Brazile as Scoonie not Spooney. Indeed, one day, while Mr. Murthil was on the phone with Mr. Brazile in a common area in the jail, Mr. Murthil asked Mr. Mahogany if he wanted to talk to Mr. Brazile. Mr. Mahogany said no, but to tell Mr. Brazile: "I didn't do it." Moreover, after Mr. Mahogany learned of Mr. Murthil's relationship with Mr. Brazile, he backtracked from his story (confession that he shot Mr. Brazil). Mr. Mahogany explained to Mr. Murthil that the story he told him was not true and that it was simply what the prosecution was alleging. During cross- examination, Mr. Murthil testified that Mr. Brazile told him that he returned shots with his own gun during the December 19, 2011, shooting.[9]

         STATEMENT OF THE CASE

         On May 17, 2012, the State charged Mr. Mahogany and a co-defendant, Rayne Williams, with the December 19, 2011, attempted second degree murder of Winfield Brazile, III. The State also charged Mr. Mahogany with discharging a firearm during a crime of violence. Another co-defendant, Christopher Baham, was charged with the November 20, 2011, attempted murder of Mr. Brazile.

         At his arraignment on May 25, 2012, Mr. Mahogany pled not guilty. Also at his arraignment, Mr. Mahogany was informed of his right to a jury trial. On January 24, 2013, the district court found no probable cause to hold Mr. Mahogany for trial. The State's writ application seeking review of this ruling was denied by both this court[10] and the Louisiana Supreme Court.[11]

         On June 17, 2013, a joint bench trial began on the charges against Mr. Mahogany and Mr. Williams. During trial, an issue arose regarding jail house phone calls made by Mr. Mahogany's cell mate, Mr. Murthil, to the victim, Mr. Brazile. To allow time for the defense to obtain the recordings of these jail house phone calls, the trial was recessed. On February 21, 2014, the trial resumed and was completed. The district court found both defendants guilty as charged.[12]

         On June 3, 2014, the district court sentenced Mr. Mahogany on count one (attempted second degree murder) to twenty years and on count two (illegal discharge of a weapon) to ten years. Both sentences were imposed without benefit of parole, probation, or suspension of sentence; and with benefit for time served. The sentences were ordered to be served concurrently. At the sentencing hearing, the State filed a habitual offender bill against Mr. Mahogany. On October 29, 2014, Mr. Mahogany filed a Motion to Quash the Multiple Bill of Information. In February 2015, Mr. Mahogany filed a notice of appeal, which was granted.

         On September 9, 2015, the district court permitted Mr. Mahogany to file out-of-time motions for new trial and post-verdict judgment of acquittal. On that same date, Mr. Mahogany filed a Motion to Reconsider Sentence.[13] On that same day, the district court denied all three of those motions.

         On January 20, 2016, the multiple bill hearing was held. Although the State charged Mr. Mahogany as a third offender, the district court adjudicated him a second offender. The district court vacated the original sentences and resentenced Mr. Mahogany to twenty-five years as to count one (attempted second degree murder) and fifteen years as to count two (discharging a firearm during a crime of violence); the district court ordered the sentences to be served concurrently.

          On March 16, 2016, this court rendered its decision on Mr. Mahogany's original appeal. State v. Mahogany, 15-0818 (La.App. 4 Cir. 3/16/16), 191 So.3d 615. In his original appeal, Mr. Mahogany appealed his convictions and original sentences and asserted the following four assignments of errors: "(1) the absence of evidence of his knowing and voluntary waiver of his right to a jury trial; (2) the convictions violated the prohibition against double jeopardy; (3) the evidence is insufficient to support his convictions; and, (4) the sentences imposed are unconstitutionally excessive." Mahogany, 15-0818 at p. 1, 191 So.3d at 616.

         Finding two errors patent, this court remanded for an evidentiary hearing on one of those errors-the jury waiver issue;[14] reserved Mr. Mahogany's right to appeal any ruling; and pretermitted the remaining issues as well as a discussion of the facts. In so doing, we ordered that "[t]he matter is remanded for an evidentiary hearing to determine whether Mr. Mahogany knowingly and intelligently waived his right to trial by jury." Mahogany, 15-0818 at p. 8, 191 So.3d at 620 (citing State v. Nanlal, 97-0786 (La. 9/26/97), 701 So.2d 963).[15]

         On April 26, 2016, the district court conducted the evidentiary hearing on the jury waiver issue. On May 24, 2016, the district court found that Mr. Mahogany knowingly and intelligently waived his right to a jury trial. Thereafter, the parties filed supplemental briefs in this court. This court, however, found that it lacked jurisdiction to consider Mr. Mahogany's supplemental assignments of error arising from the district court's ruling on remand and the issues pretermitted on appeal. This court thus ordered the lodging of a new appeal. The instant appeal followed.

         DISCUSSION

         Errors Patent

         A review of the record for errors patent reveals one. When the district court sentenced Mr. Mahogany as a double felony offender, it failed to restrict the sentences as to probation and suspension of sentence. See La. R.S. 15:529.1 G. "Despite this omission, however, pursuant to La. R.S. 15:301.1(A) and State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with the restrictions of benefits.- State v. Jones, ...


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