APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 14-6228, DIVISION
"L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux Thomas J. Butler Andrew
COUNSEL FOR DEFENDANT/APPELLANT, DAVID BRIGNAC Bruce G.
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Marion F. Edwards, Judge Pro Tempore
E. JOHNSON JUDGE
appeals his convictions and sentences for possession of a
firearm by a convicted felon and illegal use of weapons. For
the reasons that follow, we affirm Defendant's conviction
and sentence for felon in possession of a firearm and his
conviction for illegal use of weapons. However, we vacate his
sentence on his illegal use of weapons conviction and remand
the matter for resentencing.
was initially charged on December 5, 2014 with two counts of
illegal use of weapons in violation of La. R.S. 14:94 and
pled not guilty. The State subsequently filed a superseding
bill of information on May 5, 2016, charging Defendant with
one count of possession of a firearm by a convicted felon in
violation of La. R.S. 14:95.1 (count one) and one count of
illegal use of weapons by discharging a firearm (count
three). After a Faretta colloquy,
Defendant was allowed to represent himself with the
assistance of appointed counsel. The matter proceeded to a
bench trial on September 15, 2016, and the trial court found
Defendant guilty as charged on both counts.
to sentencing, defense counsel moved for the appointment of a
sanity commission to consider Defendant's mental capacity
to proceed as well as his competency at the time of his
trial. The sanity commission conducted an evaluation of
Defendant and recommended that Defendant be found incompetent
to proceed to sentencing. It deferred its opinion as to
Defendant's competency status at the time of trial until
it had an opportunity to review the trial transcripts and
other related documentation. Despite the sanity
commission's recommendation, the trial court found
Defendant competent to proceed. Defendant sought a
supervisory writ from this ruling, which this Court denied.
State v. Brignac, 16-694 (La.App. 5 Cir. 12/9/16)
(unpublished writ disposition).
on February 2, 2017, after denying Defendant's motions
for post-verdict judgment of acquittal and new trial, the
trial court sentenced Defendant to 12 years imprisonment at
hard labor without benefit of parole, probation or suspension
of sentence on his felon in possession of a firearm
conviction, and two years on his illegal use of weapons
conviction, to run concurrently with each other.
October 2014, Deputy Brent Baldassaro with the Jefferson
Parish Sheriff's Office was dispatched to a wooded area
near Destrehan Avenue close to the Harvey Canal in response
to a report of someone shooting in the area. He turned down a
dirt road heading toward the canal when he encountered a red
Chevy Cobalt. Deputy Baldassaro testified that live
ammunition indicative of an assault rifle was found around
the vehicle. He stated that an assault rifle and magazine
associated with the rifle were found separately in the nearby
woods. He further testified that two individuals, one of whom
was Defendant, were subsequently found hiding in the woods.
witness, Chris Carr, later interviewed by the police,
indicated that he had been in an automobile with Defendant,
who he identified in a photographic lineup, and another
individual, and that there was a firearm located in the
vehicle. Although Mr. Carr testified at trial that he did not
see Defendant discharge a firearm on that day, the deputy who
interviewed Mr. Carr contradicted his claim, stating that Mr.
Carr indicated during his interview that he had personally
witnessed Defendant discharge the firearm.
State also presented the testimony of Sergeant Joel
O'Lear, a latent print examiner with the Jefferson Parish
Sheriff's Office Crime Laboratory, who examined
Defendant's fingerprints taken the morning of trial and
opined that Defendant was the same person who had been
convicted in 2006 for distribution of cocaine as evidenced by
the fingerprints contained in the 2006 certified conviction
packet that was introduced into evidence.
raises two issues on appeal. First, he asserts the trial
court abused its discretion in declaring him competent to
proceed to trial. Second, he contends the trial court erred
in failing to obtain a valid jury trial waiver before
proceeding with a judge trial.
first argues that the trial court abused its discretion in
rejecting the sanity commission's unanimous
recommendation that he was incompetent to proceed to
trial. Defendant acknowledges that this issue was
previously addressed by this Court in a writ disposition, but
requests that this Court reconsider the issue. The State
responds that Defendant's claim should be denied under
the "law of the case" doctrine since this Court
previously denied relief on this issue in Defendant's
writ application, 16-KH-694.
the "law of the case" doctrine, an appellate court
will generally refuse to reconsider its own rulings of law on
a subsequent appeal in the same case. State v.
Earls, 12-448 (La.App. 5 Cir. 12/11/12); 106 So.3d 1149,
1159, writ denied, 13-132 (La. 9/20/13); 122 So.3d
1012. Application of the "law of the case" doctrine
is discretionary and the prior denial of a supervisory writ
does not bar reconsideration of an issue on appeal, nor does
it prevent the appellate panel from reaching a different
conclusion on the issue. State v. Voltolina, 10-1090
(La.App. 5 Cir. 10/25/11); 77 So.3d 1027, 1031.
Reconsideration is warranted when, in light of a subsequent
trial record, it is apparent that the determination was
patently erroneous and produced unjust results. Earls,
Court's previous ruling on Defendant's writ
application, the writ panel thoroughly and carefully
considered the merits of Defendant's claim that the trial
court erred in finding him competent to proceed to sentencing
despite the sanity commission's contrary recommendation.
The panel concluded that on the showing made, which consisted
of the transcript of the competency hearing during which Dr.
Rafael Salcedo testified, the trial court did not abuse its
discretion. The panel noted that the trial judge based his
ruling on his year and a half of interaction with Defendant
during which he explicitly found Defendant understood the
proceedings as demonstrated by his self-representation, his
various conversations with the trial judge, and the questions
he asked and arguments he made during trial. State v.
Brignac, 16-694 (La.App. 5 Cir. 12/9/16) (unpublished
writ disposition). In reviewing the full and complete record
on appeal, which consists of the trial transcript as well as
various motion hearing transcripts, we find no reason to
disturb the writ panel's previous ruling on this issue.
Defendant has failed to cite any new facts or additional
jurisprudence indicating that this Court's prior
disposition was patently erroneous and produced an unjust
result, nor does the full record reveal any new evidence