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State v. Brazell

Court of Appeals of Louisiana, Fourth Circuit

April 18, 2018


          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-560, SECTION "E" Honorable Keva M. Landrum-Johnson, Judge

          Leon A. Cannizzaro, Jr., District Attorney Kyle Daly, Assistant District Attorney ORLEANS PARISH COUNSEL FOR STATE OF LOUISIANA/APPELLEE


          Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, and Judge Regina Bartholomew Woods



          Defendant, Pharaoh Brazell, appeals his conviction for second degree battery and his subsequent adjudication and sentence as a fourth felony offender. For the reasons discussed herein, we affirm defendant's conviction and multiple offender adjudication, but we vacate defendant's sentence and remand this case to the trial court for a hearing on defendant's motion for downward departure and for resentencing.[1]


         On August 22, 2014, defendant was charged by grand jury indictment with (Count 1) attempted first degree murder, (Count 2) aggravated rape, [2] and (Count 3) second degree kidnapping of K.H.[3] At his arraignment on August 27, 2015, defendant pled not guilty to all charges. On January 5, 2016, the State amended Count 1 of the indictment from attempted first degree murder, a violation of La. R.S. 14:(29)30, to second degree battery, a violation of La. R.S. 14:34.1, and dismissed Count 3.

         Following a three-day jury trial, on January 27, 2016, defendant was found guilty of second degree battery and not guilty of aggravated rape. Defendant filed motions for new trial and for post-verdict judgment of acquittal. On February 24, 2016, the trial court denied defendant's motions and sentenced defendant to five years at hard labor.[4] On that same date, the State filed a multiple offender bill charging defendant as a fourth offender.

         On May 19, 2016, the trial court held a multiple bill hearing. Following the presentation of evidence and arguments, the trial court denied defendant's motion to quash the multiple bill and adjudicated defendant a fourth offender. The trial court vacated defendant's original sentence for the second degree battery conviction and re-sentenced him to thirty-five years at hard labor. Following sentencing, defense counsel filed a motion for downward departure and requested an evidentiary hearing pursuant to State v. Dorthey, 623 So.2d 1276 (La. 1993). The trial court denied the request for a hearing but set a date for ruling on the motion for downward departure. The trial court also granted defendant's motion for appeal. Subsequently, on July 8, 2016, the trial court denied the defense motion for downward departure.

          This timely appeal followed.


         K.H., the victim in this case, testified that she and defendant had been in a relationship for several years prior to the incident on July 13, 2014. K.H. stated that she and defendant were "very much in love" but "the relationship was very toxic." She also described defendant as an angry, volatile person, who had been violent with her in the past and had been arrested for domestic violence against her in 2012 and 2013. For several weeks prior to July 13, 2014, K.H. had been living at her daughter's house in Algiers and caring for a dying relative; during that time, K.H. had not seen or spoken to defendant.

         On July 13, 2014, at approximately 4:00 p.m., defendant unexpectedly arrived at K.H.'s daughter's house and rang the doorbell several times. K.H. stepped outside to greet defendant. She testified that she was afraid to let him inside the house with her daughter and mother present, because she "didn't know what state of mind he was in." In order to get him away from the house, K.H. agreed to go with defendant to his house. Before leaving with defendant, K.H. went back inside the house to bathe and dress. When she came outside to go with him, she noticed defendant's demeanor had changed; he began berating her for not coming to see him.

         K.H. and defendant travelled by bus and streetcar to his house in Mid-City. Upon exiting the streetcar, defendant became angry and threatening towards K.H. But, when they arrived at defendant's house, K.H. and defendant engaged in consensual sex. Afterwards, defendant left the house while K.H. lay down to rest on a mattress on the floor.

          When defendant returned, he noticed empty cups on the floor and angrily accused K.H. of having other men at the house in his absence. K.H. attempted to stand up from the mattress, but defendant kicked her in her face; she fell backwards onto the floor and felt blood pouring from her mouth. Weak and dazed from the kick to her face, K.H. laid on her stomach to prevent defendant from hitting her in the face again. Defendant then flipped K.H. over on her back, stood over her, and repeatedly punched her in her stomach. As K.H. began to drift "in and out" of consciousness, defendant pulled off her clothes, grabbed her by the head, and forcibly pushed her head into his groin to have her perform oral sex upon him. In response, K.H. bit defendant on his inner thigh. Defendant then grabbed a large piece of plastic that was separating two rooms in the house, he laid the plastic out on the floor, and he grabbed a rope. Defendant ordered K.H. to put the rope around her neck and lay face down on the plastic. Fearing that defendant was going to kill her, K.H. attempted to get up and move towards the door of the house; but defendant kicked her down and tied her legs with the rope. As K.H. laid there, defendant's demeanor changed again; he started "laughing like it's a joke."

         Defendant then told K.H. that she should get to a hospital but that he could not take her. K.H. convinced defendant to take her to the hospital by promising to tell hospital staff and police that a stranger robbed and beat her. When he agreed to go with her, K.H. managed to get up and walk with defendant a few blocks to Broad Street, where he walked ahead of her to a gas station to call an ambulance. When defendant walked ahead, K.H. flagged down a police car pulling up to the gas station. K.H. told the police officer that defendant beat her up, that he had walked to the gas station to use the phone, and that he was going to say someone else beat her up. She explained to the officer that she told defendant she would lie to police about a stranger beating her so he would agree to bring her to the hospital. Soon after, an ambulance arrived to take K.H. to the hospital. K.H. did not remember much of what happened when she was taken to the hospital; but she knew she had surgery to remove her spleen.

         Officer Joseph Betcher testified that, in the early morning hours of July 14, 2014, he responded to a domestic violence complaint reported by another officer at the city gas pump facility on Broad Street. When Ofc. Betcher arrived on the scene, K.H. was speaking with the reporting officer, Sergeant Shaw, and defendant was detained by other officers on scene. Ofc. Betcher activated his body camera before speaking with K.H., whom he observed to be badly, physically beaten, with injuries to her face, lips, and eyes. Ofc. Betcher took an initial statement from K.H., who stated that defendant was her ex-boyfriend and he had kicked and beat her. Ofc. Betcher attended to K.H. until the ambulance arrived and transported her to the hospital.

         At that time, defendant was arrested on a charge of domestic abuse battery and placed in the back seat of Ofc. Betcher's patrol vehicle. While Ofc. Betcher filled out paperwork in his patrol vehicle, defendant made several statements that were recorded on Ofc. Betcher's body camera.[5] Defendant stated that he had dated K.H. in the past; and, earlier that night, she showed up at his house, told him that she was robbed and beaten, and needed defendant to bring her to the hospital. Defendant repeatedly denied hitting K.H. and said he did not know how she was injured. Defendant also made threatening statements, saying he would kill K.H. and Ofc. Betcher.

          After transporting defendant to the First District Station, Ofc. Betcher relocated to Tulane Hospital, where K.H. was being treated for her injuries. Ofc. Betcher recorded a full statement from K.H. on his body camera. From her statement, Ofc. Betcher learned that defendant had repeatedly beat and kicked K.H., tied her up with a rope, strangled her, threatened to kill her, and forced her to have sex with him. Based on K.H.'s statement and injuries, Ofc. Betcher determined that the investigation should be turned over to the N.O.P.D. Sex Crimes Division.

         Ofc. Betcher also testified that he was familiar with defendant and K.H. from a previous domestic violence complaint. In January 2013, Ofc. Betcher responded to a call from the same victim. Ofc. Betcher learned that K.H. had locked defendant out of their apartment; as a result, defendant became violently angry and broke a window to try to get inside. Ofc. Betcher recalled defendant's demeanor as threatening and "crazy with anger" towards K.H. Ultimately, Ofc. Betcher arrested defendant for disturbing the peace, criminal trespass, and criminal damage to property.

         Detective Stephanie Taillon testified that, on July 14, 2014, she was assigned to the Sex Crimes Division of the Special Victim Section of N.O.P.D. On that date, she was called to investigate a sexual assault. She met with Ofc. Betcher at Tulane Hospital; he provided her with an overview of the case and introduced her to K.H. At that time, Det. Taillon was unable to interview K.H. due to her traumatic condition. But, based on the statements made to Ofc. Betcher, Det. Taillon requested that K.H. be transferred to University Hospital for sexual assault nurse examiner ("SANE") services.[6]

         In the following week, Det. Taillon made two attempts to visit K.H. in the hospital for an interview. On her first attempt, Det. Taillon learned K.H. was in the intensive care unit ("I.C.U."), recovering from surgery to remove her spleen, and was unable to complete an interview. Once K.H. was transferred out of I.C.U., on July 25, 2014, Det. Taillon conducted a full, recorded interview with K.H and took photographs of her injuries. Based on that interview, Det. Taillon applied for a buccal swab search warrant for defendant and a search warrant for defendant's residence, located at 705 North Gayoso Street.

         Det. Taillon identified and described photographs taken during the execution of the search warrant for defendant's house. Det. Taillon noted that the interior of the house was in a "deplorable condition, " but that there was a mattress and other items inside the house indicating someone had been staying there. Det. Taillon found a large piece of industrial-type plastic, a rope, several cups, and a bundle of bloody napkins, all of which K.H. had described in her interview.

         Regarding the execution of the buccal swab search warrant, Det. Taillon testified that she met with defendant at the Orleans Parish Prison, where he was in custody. Det. Taillon identified herself to defendant as the investigating detective in this case. She told defendant she had a search warrant to collect two buccal swabs from him, and she explained the procedure to him. As she was conducting the procedure, defendant made several unprompted statements to her. Det. Taillon testified that defendant asked about K.H.'s condition, he stated he was "sorry this had to happen" and "I did this because I love her, " and he said he felt bad about hitting K.H. and kicking her a few times. Det. Taillon repeatedly advised defendant to stop speaking to her and reminded him of his right to remain silent; nonetheless, he talked throughout the procedure. Det. Taillon documented defendant's statements in her report. She testified that she did not have any audio or visual recording of defendant's statements, because recording devices are prohibited at Orleans Parish Prison.

         Eileen Smith, a sexual assault nurse examiner ("SANE nurse") for University Hospital, testified that she conducted a sexual assault interview and examination of K.H. on July 14, 2014. Ms. Smith recorded notes of her interview and examination of K.H., and she compiled her findings in a report that was introduced into evidence at trial. Ms. Smith documented and photographed the following injuries on K.H.: periorbital swelling and bruising to her right eye; swelling to both lips; internal lacerations on her bottom lip; horizontal marks on the proximal portion of her neck; bruising to her left elbow and forearm; and swelling to the proximal area of her left knee. Ms. Smith also performed a pelvic exam and collected swabs for the sexual assault forensic evidence kit.[7] Ms. Smith noted that K.H. was in a great deal of pain and trauma and, subsequently, underwent surgery to remove her spleen.

          Dr. Peter Meade testified as an expert in critical care and as a member of the surgical team who treated K.H.'s injuries. Dr. Meade identified and reviewed K.H.'s medical records from her admission to the hospital on July 14, 2014. Dr. Meade listed nine discernible injuries to K.H., with the most severe being a grade 4 splenic laceration that required surgical intervention to remove her spleen, "to save her life." He also listed the injuries to her left elbow, left knee, thighs, lips, right eye, and neck. Dr. Meade stated that K.H.'s level of trauma was acute when she was admitted to the hospital. Further, he noted that "the injury to the spleen was life-threatening" and falls within the definition of serious bodily injury.


         In this appeal, defendant raises eight assignments of error-two of which were raised in a counseled brief and six within his supplemental pro se brief. In his final, pro se assignment of error, defendant argues that the evidence presented at trial was insufficient to support his conviction for second degree battery. We address this assignment of error first, in accordance with our jurisprudence that "[w]hen issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence." State v. Miner, 14-0939, p. 5 (La.App. 4 Cir. 3/11/15), 163 So.3d 132, 135 (quoting State v. Hearold, 603 So.2d 731, 734 (La. 1992)).

         Sufficiency of the Evidence

         In evaluating whether the evidence is sufficient to support a conviction, this Court applies the standard of review set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could be convinced that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Tate, 01-1658, p. 4 (La. 5/20/03), 851 So.2d 921, 928. In applying this standard, the reviewing court must consider the record as a whole, as the rational trier of fact would do; and if rational triers of fact could disagree as to the interpretation of the evidence, then a rational trier's view of the evidence most favorable to the prosecution must be adopted. Miner, 14-0939, p. 6, 163 So.3d at 136 (quoting State v. Huckabay, 00-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111). The reviewing court is "not permitted to second guess the rational credibility determinations of the fact finder at trial." State v. Kelly, 15-0484, p. 3 (La. 6/29/16), 195 So.3d 449, 451 (citing State v. Marshall, 04-3139 (La. 11/29/06), 943 So.2d 362, 367). "It is not the function of an appellate court to assess credibility or reweigh the evidence." Id. (citing State v. Stowe, 635 So.2d 168, 171 (La. 1994). "The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law." State v. Egana, 97-0318, p. 6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 228 (citing State v. Mussall, 523 So.2d 1305 (La. 1988)); see Jackson, 443 U.S. at 319.

         In this case, defendant argues that the State failed to establish beyond a reasonable doubt the essential elements of the offense of second degree battery, specifically that he intentionally inflicted serious bodily injury upon K.H. Second degree battery, a violation of La. R.S. 14:34.1, is defined as "a battery when the offender intentionally inflicts serious bodily injury." "Serious bodily injury" is further defined as "bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death." La. R.S. 14:34.1(B)(3).

          At trial, K.H. testified that defendant repeatedly kicked and punched her in the face and body to an extent that she was drifting in and out of consciousness. She stated that she could barely move to defend herself or escape due to the injuries defendant had inflicted upon her. She also testified that she believed defendant "had to be plotting this" and intended to kill her, which is what she always feared during their volatile relationship.

         Ofc. Betcher testified that K.H. appeared badly, physically beaten when he first spoke with her and that K.H. identified defendant as the person who beat her. In addition, the jury viewed Ofc. Betcher's body camera footage of K.H.'s statements to him-both on the scene and at the hospital. Moreover, the video footage and photographs of K.H. taken at the hospital, admitted into evidence at trial, depict the numerous physical injuries to K.H.'s face and body.

         Det. Taillon testified that defendant made several unprompted, self-incriminating statements to her during the buccal swab search warrant procedure. When he learned that K.H. was still in the hospital, defendant told Det. Taillon that he "kicked [K.H.] a few times in the butt" and he "felt bad about hitting her."

         Dr. Meade testified regarding the serious, life-threatening extent of K.H.'s injuries, most significantly the grade 4 splenic laceration that required surgical intervention "to save her life." Dr. Meade opined that the near-fatal injury to K.H.'s spleen could have been caused by a fall, kick, or a punch. Dr. Meade also discussed the continuing health effects and complications that K.H. may experience due to the removal of her spleen.

         In sum, the testimony and evidence presented at trial included the victim's testimony that defendant repeatedly, intentionally beat and kicked her; medical testimony regarding the serious, life-threatening extent of the injuries inflicted upon the victim; and video and photographic evidence of the victim's injuries. Based on the totality of the testimony and evidence presented at trial, viewed in the light most favorable to the prosecution, we find that any rational trier of fact could find that the elements of the offense of second degree battery had been proved beyond a reasonable doubt.

         Sufficiency of Amended Indictment

         In another pro se assignment of error, defendant argues that the trial court erred in allowing the State to amend Count 1 of the grand jury indictment from attempted first degree murder to second degree battery. Defendant argues that the amendment to the indictment violated his constitutional rights to be informed of the nature of the charges against him and to have his prosecution initiated by grand jury indictment.

         "The time for testing the sufficiency of an indictment is before trial by way of a motion to quash or an application for a bill of particulars." State v. Reel, 10-1737, p. 9 (La.App. 4 Cir. 10/3/12), 126 So.3d 506, 514 (citing State v. Gainey, 376 So.2d 1240, 1243 (La. 1979)). It is well-settled in Louisiana that "[a] post-verdict attack on the sufficiency of an indictment does not provide grounds for setting aside a conviction unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense." State v. Cavazoz, 610 So.2d 127, 128 (La. 1992); see State v. Phillips, 10-0582, p. 10 (La.App. 4 Cir. 2/17/11), 61 So.3d 130, 137; State v. Page, 08-531, p. 16 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 452; State v. Johnson, 07-1040, p. 7 (La.App. 4 Cir. 9/10/08), 993 So.2d 326, 330.

         The record reflects that defendant was initially indicted for attempted first degree murder of K.H. on August 22, 2014. On January 5, 2016, the date set for trial, the State amended that count of the indictment from attempted first degree murder to second degree battery of K.H., a lesser offense.[8] On that same date, the defense requested a continuance, which the trial court granted. On January 13, 2016, the defense filed a motion for bill of particulars, regarding the conduct alleged against defendant constituting the elements of second degree battery. On January 20, 2016, the State filed its response to the defense motion for bill of particulars. On January 25, 2016, defendant filed a motion to quash the indictment, which the trial court denied. That same day, a jury was impaneled and trial commenced.

         In the motion to quash filed prior to the commencement of trial, defendant argued that the amended indictment should be quashed on the grounds that it was not indorsed "a true bill" and was not signed by the foreman of the grand jury. See La. C.Cr.P. art. 533(A)(5). In denying the motion to quash, the trial court found that the original indictment was signed by the foreman of the grand jury and the amendment down did not have to be indorsed by the grand jury.

         Under Louisiana law, [9] prosecution for a capital offense or an offense punishable by life imprisonment shall be instituted by indictment by the grand jury, and prosecution of other felony offenses shall be initiated by indictment or information. La. Const. Art. I, ยง 15; La. C.Cr.P. art. 382A. An indictment is a written accusation of crime made by a grand jury that must be concurred in by not less than nine grand ...

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