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State v. Brown

Court of Appeals of Louisiana, Fifth Circuit

December 20, 2017



          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long Seth W. Shute Douglas E. Rushton.


          DEFENDANT/APPELLANT, CODY R. BROWN In Proper Person.

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst


         Defendant, Cody R. Brown, appeals his convictions and sentences for one count of possession with the intent to distribute heroin in violation of La. R.S. § 40:966(A) and a second count of possession with the intent to distribute cocaine in violation of La. R.S. § 40:967(A), complaining that the trial court erred in admitting evidence of other crimes during trial and in adjudicating him as a second felony offender during a multiple bill proceeding. For the following reasons, we affirm.

         Procedural History

         On December 5, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant with one count of possession of heroin with the intent to distribute in violation of La. R.S. § 40:966(A) and a second count of possession of cocaine with the intent to distribute in violation of La. R.S. § 40:967(A).[1] Defendant was arraigned on February 19, 2015, and pled not guilty. On February 29, 2015, defendant filed a motion to suppress both a post-arrest statement he made to the police and evidence seized from a cell phone found in his possession at the time of his arrest. On August 28, 2015, the State filed a notice of intent to use evidence of other crimes. Specifically, the State gave notice of its intent to introduce pictures of large amounts of money and multiple videos showing defendant utilizing plastic baggies and a digital scale to package a substance that the State alleged appeared to be heroin which had been downloaded from a cell phone found in defendant's possession at the time of his arrest.[2]

         On September 1, 2015, prior to opening statements, the court heard defendant's motions to suppress as well as the State's motion to introduce evidence of other crimes pursuant to La. C.E. art. 404(B).

         During the 404(B) "Prieur[3]" hearing, the State informed the trial judge that the Kenner Police Department obtained a search warrant to search one of four cell phones found in defendant's possession at the time of his arrest. Upon searching the phone, the State found pictures of a large amount of money, a picture of a gun with money, and a video of defendant packaging what appeared to be heroin. Thereafter, Detective David Schlueter, formerly of the Kenner Police Department, testified that upon searching defendant post-arrest, he seized four cell phones from defendant's person. Thereafter, one of the four seized cell phones rang constantly and received messages. None of the other three cell phones was turned on. Detective Schlueter obtained a search warrant to search the contents of the ringing phone, an AT&T Samsung Galaxy S4 model, SGH1-I7337, white in color. Upon downloading the phone's contents, the State seized photographs, videos and text messages from the cellphone. In support of its motion, the State argued that the evidence seized from the cell phone was probative of defendant's intent to distribute heroin and cocaine. The defense countered that the evidence was highly prejudicial and, as there was no evidence that the white powder portrayed in the pictures was actually heroin, the evidence lacked probative value and would tend to confuse the jury, which might convict the defendant based upon the extraneous cell phone evidence alone. At the conclusion of the hearings, the trial court denied defendant's motion to suppress the cell phone evidence and defendant's statement, finding the cell phone evidence was admissible as it was seized pursuant to a valid search warrant and that defendant had been properly notified of his Miranda rights before making a statement to police. The court granted the State's 404(B) motion to admit evidence of other crimes.

         Thereafter, the matter was tried before a twelve-person jury, which found the defendant guilty on both counts.[4] Three days later, on September 4, 2015, the defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial. The trial court denied both motions on September 4, 2015. Defendant waived sentencing delays, and the court sentenced him to thirty years imprisonment on each count to be served concurrently. As to count one, the heroin charge, defendant was ordered to serve ten years without the benefit of probation, parole or suspension of sentence. As to count two, the cocaine charge, defendant was ordered to serve two years without the benefit of probation, parole or suspension of sentence.

         On September 18, 2015, the Jefferson Parish District Attorney's office filed a multiple offender bill of information against defendant alleging defendant had previously pled guilty to manslaughter in St. Charles Parish on August 22, 2001. Defendant returned to court on October 27, 2015 as a pro se litigant to file an "Amendment/Supplemental to Motion for New Trial." On November 10, 2015, the trial court denied this motion for lack of jurisdiction pursuant to La. C.Cr.P. art. 916, as the court had already granted defendant's motion for appeal on September 17, 2015. Defendant's trial counsel filed a motion to withdraw on November 19, 2015, which was granted on December 2, 2015. On December 9, 2015, the Louisiana Appellate Project was appointed as defendant's appellate counsel.

         On February 25, 2016, the trial court held defendant's habitual offender hearing and found defendant to be a second felony offender. On February 29, 2016, the trial court vacated defendant's original sentence as to count one for the heroin conviction, and resentenced defendant as to that count to fifty years imprisonment at hard labor without the benefit of probation, parole or suspension of sentence in accordance with La. R.S. 15:529.1, to be served concurrently with the original sentence for count two, the cocaine conviction. At the conclusion of the hearing, defendant made an oral motion for appeal, and the court granted the motion.

         On April 4, 2016, defendant filed his first appeal to this Court. On October 26, 2016, this Court remanded the case to the district court without addressing the errors assigned in order for the district court to rule on defendant's original and supplemental motions for new trial pending as the trial court lacked jurisdiction over defendant after granting his motion for appeal. This Court also reserved defendant's right to appeal his convictions and sentences in a second appeal. On April 6, 2017, defendant's post-trial motions were denied. Defendant filed a second motion for appeal on April 12, 2017, which the trial court granted. Defendant filed a second motion to reconsider sentence, which the trial court denied on May 18, 2017.



         This case arises from an arrest which occurred on the afternoon of December 5, 2014. That afternoon defendant was a passenger in a car driven by Shawn Broussard which Kenner Police stopped for excessive window tint. The Kenner Police Department ran a criminal history inquiry on defendant which revealed an outstanding attachment for defendant's arrest in Orleans Parish. The Kenner Police Department arrested defendant on the Orleans Parish attachment. After defendant was transported to the Kenner Police Department, he was found to be in possession of distributable amounts of heroin and cocaine along with marijuana. During the September 1, 2015 trial, the State called Detectives David Schlueter and Kevin Treigle, Officer Francisco Alvarenga, Computer Forensics Examiner Edward Rohde, and Forensic Drug Analyst Brian Schulz as witnesses.

         Narcotics Detectives Kevin Treigle and David Schlueter of the Kenner Police Department testified that on December 5, 2014 they were on a proactive patrol in an area with high criminal drug activity. Detective Treigle explained that he had been a member of the Federal Drug Enforcement Administration High Intensity Drug Trafficking Area Task Force since 2010 and as such he is commissioned by the Drug Enforcement Administration to make federal drug arrests.

         Former Detective Schlueter had been a Narcotics Detective for the Kenner Police Department between 2010 and April of 2015. Detective Schlueter testified that during his time with Kenner Police, he conducted regular drug patrols, and made many drug related arrests.

         While on patrol on December 5, 2014, Detectives Treigle and Schlueter noticed a Nissan Altima with a windshield tint exceeding the legal maximum of six inches. At trial, Detective Treigle testified that he stopped the car and approached the driver, Shawn Broussard, and informed him that he was being pulled over for excessive window tint. Detective Treigle testified that as he was speaking to Broussard, he noticed Broussard was nervous. Therefore, Detective Treigle scanned the interior of the car and observed two bottles of Mannitol in a brown paper bag on the backseat. The presence of Mannitol roused Detective Treigle's suspicion as Mannitol itself is not illegal, but is frequently used as a cutting agent added to cocaine or heroin to increase the drug's volume and profit margin.

         Detective Schlueter testified that as Detective Treigle pulled behind Broussard's car, activated the emergency lights and sirens, and pulled the vehicle over, he observed the front seat passenger -the defendant- "moving frantically in his seat like as if he was trying to either reach for something, conceal something." Detective Schlueter exited the car and approached the vehicle from the passenger side. The passenger identified himself to detective Schlueter as Cody Brown. During their exchange, Detective Schlueter testified that defendant was extremely nervous, did not make eye contact with him, and his pulse was visible on his neck. After their exchange, Detective Schlueter returned to the patrol car, and contacted Kenner Police Headquarters to run a criminal history inquiry on Cody Brown. The inquiry revealed defendant had an open attachment in Orleans Parish. Detective Schlueter testified he returned to Broussard's car, placed defendant's hands in handcuffs, advised defendant of his rights and arrested defendant. Detective Schlueter testified he notified Detective Treigle of defendant's outstanding attachment, and Detective Treigle told Detective Schlueter about the Mannitol in the backseat.

         Detective Schlueter testified that after he advised defendant of his rights, he asked about the Mannitol in the back seat. Defendant responded to Detective Schlueter that he had purchased the Mannitol at a music store in Kenner.

         After the arrest, Detective Schlueter testified he conducted a post-arrest search of defendant's pockets, waistband, arms and legs to find firearms or contraband. Pursuant his search of defendant, Detective Schlueter found $1211.00 and four cell phones. Detective Schlueter testified that using multiple phones is a common tactic among drug traffickers as it aids in evading the police's attempts to pinpoint their location. After the search, Detective Schlueter contacted the Kenner Police Department for a patrol unit to transport defendant to the Kenner Police Department. After defendant was transported to the Kenner Police Department, Detective Schlueter testified he issued Broussard a citation for the illegal window tint.

         Officer Francisco Alvarenga testified that he transported defendant to the Kenner Police Department. When Officer Alvarenga arrived on the scene, defendant was already in handcuffs. Officer Alvarenga testified that upon arrival at the Kenner lock-up, as he opened the door to let defendant out of the patrol car, he noticed a plastic bag protruding from defendant's clenched hands. Officer Alvarenga asked defendant to drop the bag, and defendant complied. Officer Alvarenga testified that the plastic bag contained three additional plastic bags. At that point, Officer Alvarenga contacted Detectives Treigle and Schlueter regarding defendant's suspected narcotics possession.

         Detectives Schlueter and Treigle returned to the Kenner Police Department. Upon arrival, Schlueter testified Officer Alvarenga gave him a plastic bag containing three plastic bags, the contents Detective Schlueter believed were consistent with the physical characteristics of heroin, cocaine, and marijuana. Detective Schlueter performed a field test on the contents of the bags, and one powder tested positive for the presence of ...

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