FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-560,
SECTION "E" Honorable Keva M. Landrum-Johnson,
A. Cannizzaro, Jr., District Attorney Kyle Daly, Assistant
District Attorney ORLEANS PARISH COUNSEL FOR STATE OF
Constance Hanes LOUISIANA APPELLATE PROJECT COUNSEL FOR
composed of Judge Edwin A. Lombard, Judge Sandra Cabrina
Jenkins, and Judge Regina Bartholomew Woods
BARTHOLOMEW-WOODS, J., CONCURS IN THE RESULT
CABRINA JENKINS, JUDGE
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
OF THE CASE
August 22, 2014, defendant was charged by grand jury
indictment with (Count 1) attempted first degree murder,
(Count 2) aggravated rape,  and (Count 3) second degree
kidnapping of K.H. 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.
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. On that same
date, the State filed a multiple offender bill charging
defendant as a fourth offender.
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
timely appeal followed.
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.
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.
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.
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."
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.
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.
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. 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.
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.
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.
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")
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.
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
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.
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. Ms. Smith noted that K.H. was in a great
deal of pain and trauma and, subsequently, underwent surgery
to remove her spleen.
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.
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.
of the Evidence
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.
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).
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.
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.
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."
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.
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.
of Amended Indictment
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
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.
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. 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.
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
Louisiana law,  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, § 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