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State v. Zepeda

Court of Appeals of Louisiana, Fourth Circuit

December 13, 2017

STATE OF LOUISIANA
v.
CARLOS ZEPEDA

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 530-048, SECTION "L" Honorable Franz Zibilich, Judge

          Leon Cannizzaro DISTRICT ATTORNEY ORLEANS PARISH Donna Andrieu, Chief of Appeals Assistant District Attorney J. Taylor Gray Assistant District Attorney FOR APPELLEE/STATE OF LOUISIANA

          Sherry Watters LOUISIANA APPELLATE PROJECT FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Joy Cossich Lobrano

          Joy Cossich Lobrano, Judge

         Defendant, Carlos Zepeda ("Defendant"), appeals his November 30, 2016 convictions for aggravated battery, a violation of La. R.S. 14:34, and simple battery, a violation of La. R.S. 14:35. Defendant also appeals his sentence for aggravated battery. Finding no error, we affirm the judgment of the district court.

         On the morning of June 18, 2016, three male friends (together, "victims, ") met at a hardware store where they frequently gathered in search of work. After waiting for a period of time at the hardware store without success, the victims relocated to a restaurant where they ordered food and a six-pack of beer to share amongst themselves.[1] While the victims were eating and drinking, Defendant came over to their table and asked for a beer, at which time the first victim[2] gave him one.[3] The group socialized for about half an hour before the victims paid their bill. Rather than paying his own bill, Defendant asked the victims to lend him fifty dollars. None of the victims complied.

         At that time, all four men left the restaurant together and transported Defendant to his house. The first victim testified that Defendant went inside of the house to obtain money to pay his bill at the restaurant, but he never returned to the vehicle. The victims left Defendant at his house and drove back to the hardware store.

         About twenty-five to thirty minutes later, Defendant arrived at the hardware store. A group of people were outside the store gambling and playing a game of cards. Defendant did not say a word to anyone, but went to the trunk of his car, closed it, and walked away. The third victim observed Defendant crossing the street towards them, carrying a machete in his pants. The first victim was distracted by the game of cards and did not see Defendant approach him from behind. Defendant struck the first victim with the machete several times in the back, near the neck, in the torso and ribs, and in the back of the head. The blows caused the first victim to collapse near a tree at the front entrance of the hardware store.

         After attacking the first victim, Defendant ran after the second victim with the machete. The second victim took off his belt to defend himself. However, the belt tore and the second victim ran away from Defendant. Defendant then fled towards the entrance of the hardware store and into the street. A group of about six or seven people, including the second and third victim, immediately chased after Defendant with sticks, bats, and other objects to prevent him from leaving the scene. Defendant fled towards a white truck, but before he could drive away, several people pulled him out of the truck and detained him until the police arrived. At one point during the chase, the third victim caught up with Defendant in order to detain him, but Defendant fractured his hand with a paint roller/stick.

         Two Louisiana State Troopers and a New Orleans Police Department ("NOPD") detective were the first law enforcement officers on the scene. A little while later, Officer Colin Eskine ("Officer Eskine"), of the NOPD, arrived. The NOPD detective gave Officer Eskine a brief summary of what occurred prior to his arrival. A Louisiana State Trooper provided interpretation between the second and third victims and Officer Eskine.

         Both the first victim and Defendant were transported to the hospital, where the first victim received multiple stitches in the back of his head, his left ear, and torso. Defendant was also treated for a minor injury to his hand. Defendant and the first victim were released from the hospital shortly thereafter.

         On July 25, 2016, the State of Louisiana charged Defendant by bill of information with one count of attempted second degree murder of the first victim, in violation of La. R.S. 14: (27)30.1, one count of aggravated assault with a dangerous weapon of the second victim, in violation of La. R.S. 14:37, and one count of simple battery on the third victim, in violation of La. R.S. 14:35. On July 27, 2016, Defendant appeared in court for arraignment and entered a plea of not guilty. On August 19, 2016, Defendant filed numerous pre-trial motions. A hearing on Defendant's motions was held on August 22, 2016, and the district court found probable cause for the charges filed against Defendant.

         A three-day jury trial was held from November 28, 2016 through November 30, 2016. On the first day of trial, the State provided defense counsel with medical records indicating that the first victim had an ethanol level of 148.66 on the date of the incident. Counsel for the State indicated that although the medical records were dated July 20, 2016, the State obtained them on November 28, 2016.

         On the second day of trial, defense counsel filed a motion for sanctions, alleging a violation of Brady and statutory discovery laws. A hearing outside the presence of the jury was held, during which defense counsel requested three remedies. First, defense counsel requested a mistrial. Next, defense counsel requested that the district court take judicial notice that a 148.66 ethanol level is equivalent to a .14866 blood alcohol level. Lastly, defense counsel requested that the district court instruct the jury that defense counsel was unable to incorporate information concerning the victims' intoxication into opening statements because the State's failed to disclose it timely. At the conclusion of the hearing, the district court agreed to take judicial notice of the .14866 blood alcohol level and to give the jury instruction. Defense counsel agreed to withdraw the motion and proceed with trial.

         At the conclusion of the trial on November 30, 2016, as to count 1, the jury found Defendant guilty of a lesser offense, aggravated battery, a violation of La. R.S. 14:34; as to count 2, the district court found Defendant not guilty; and as to count 3, the district court found Defendant guilty. On December 8, 2016, Defendant was sentenced. As to count 1, Defendant received ninety-eight months imprisonment at hard labor, the first year to be served without benefit of probation, parole, or suspension of sentence and as to count 3, Defendant received ninety-eight days at Orleans Parish prison, to be served concurrently with the sentence for count 1. Defense counsel filed a motion for appeal and designation of the record on December 12, 2016, which the district court granted on the same date. This appeal timely follows.

         ERRORS PATENT

         Louisiana Code of Criminal Procedure article 920 directs appellate courts to consider errors discoverable by an inspection of the pleadings and proceedings. State v. Sims, 2017-0101, p. 3 (La.App. 4 Cir. 11/15/17), ---So.3d---. A review of the record reveals that at the December 8, 2016 sentencing hearing, the district court informed Defendant that his sentence would be ninety-eight months imprisonment at the Department of Corrections for the State of Louisiana at hard labor, with the first year of the sentence being served "without the benefit of probation, parole, or suspension of sentence." Pursuant to La. R.S. 14:34(B), at least one year of the sentence shall be served without benefit of parole, probation, or suspension only if the offender knew or should have known that the victim was an active member of the Armed Forces or is a disabled veteran.[4] Both Defendant and the State agree that the record is void of any evidence that the first victim is an active member of the Armed Forces or is a disabled veteran. Accordingly, the case is remanded to the district court to amend the sentence to remove this restriction.

         Assignments of Error

         In his first assignment of error, Defendant argues that the district court erred by failing to impose sanctions on the State for failure to produce Brady material. It is well settled that the State has an affirmative duty to disclose exculpatory evidence favorable to a defendant. Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). In order to prove a Brady violation, the defendant must establish, inter alia, that the evidence in question was in fact exculpatory or impeaching. State v. Garrick, 2003-0137, p. 5 (La. 4/14/04), 870 So.2d 990, 993 (per curiam). Disclosure of exculpatory evidence should be made in time to allow a defendant to make effective use of such information in the presentation of his case. State v. Crawford, 2002-2048, p. 13 (La.App. 4 Cir. 2/12/03), 848 So.2d 615, 625. However, even where a disclosure is made during trial, it will be considered timely if the defendant is not prejudiced. See State v. Prudholm, 446 So.2d 729, 738 (La. 1984).

         In the instant case, defense counsel filed a written motion for sanctions for Brady violations. On six different occasions during the hearing on the motion, the district court asked defense counsel exactly what remedies she was seeking; specifically asking whether she wanted the district court to declare a mistrial.[5] Rather than maintaining her objection and seeking sanctions and/or a mistrial, defense counsel withdrew her motion, instead asking that the district court take judicial notice that a 148.66 ethanol level is the equivalent of a .148 blood alcohol level and that the district court instruct the jury that defense counsel was unable to incorporate information concerning the victims' intoxication into ...


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