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State v. Brown

Court of Appeals of Louisiana, Second Circuit

January 16, 2019

STATE OF LOUISIANA Appellee
v.
LARRY R. BROWN, JR. Appellant

          Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. 2015260 Honorable Glen W. Strong, Judge

          LOUISIANA APPELLATE PROJECT By: Douglas L. Harville Counsel for Appellant.

          JOHN M. LANCASTER District Attorney KENNETH D. WHEELER Assistant District Attorney, Counsel for Appellee.

          Before WILLIAMS, COX, and BLEICH (Pro Tempore), JJ.

          BLEICH, J. (PRO TEMPORE)

         This criminal appeal arises from the Fifth Judicial District Court, Parish of Richland, the Honorable Glen Strong presiding. After a jury trial, Defendant Larry R. Brown, Jr., was found guilty as charged of the second degree murder of Michael Bradley and possession of a firearm by a convicted felon. Brown was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the second degree murder conviction, and ten years imprisonment at hard labor on the possession of a firearm by a convicted felon conviction. He was given credit for time served in actual custody prior to imposition of sentence, and the sentences were ordered to run concurrently. A timely filed motion to reconsider sentence was denied. Brown has appealed, asserting only that the trial court erred in denying his motion to continue the trial. Brown's convictions and sentences are affirmed.

         FACTS

         On November 19, 2015, Defendant Larry R. Brown, Jr., was charged by bill of indictment with the September 28, 2015, second degree murder of Michael Bradley. Brown pled not guilty, and the Indigent Defender Board was appointed to represent him. On January 26, 2016, defense counsel filed a motion for discovery. On February 25, 2016, Brown filed a pro se motion for speedy trial, which was never adopted by defense counsel, and this motion was set for hearing on March 30, 2016.[1] In April 2016, Brown filed pro se requests for court minutes, which were provided to him; for a police report and affidavit, which was denied as not in the custody of the clerk; and for the transcript of the March 30, 2016 hearing on the motion for speedy trial, which was granted. On May 23, 2016, the state filed its initial response to discovery, and on March 3, 2017, it filed a supplemental response to discovery.

         On May 5, 2017, Brown was charged in a separate docket number by bill of indictment with possession of a firearm by a convicted felon in connection with the murder of Bradley.

         On January 3, 2018, the district attorney filed an amended indictment for the sole purpose of consolidating the two charges.[2] At the time of the filing of the amended indictment, Brown had been arraigned on both charges.

         On January 24, 2018, the state filed a La.C.Cr.P. article 768 Notice[3]advising that it intended to introduce statements made by Brown to investigators, as well as statements made by Brown to witnesses Danielle Collins, Rosemary Cleveland, Terrance Miles, Robert Earl Miles, and Amanda McKenzie. Transcripts of the statements of Danielle Collins, Terrance Miles, and Robert Miles were produced to the defense in the state's initial discovery responses of May 23, 2016. Transcripts of the statement of Amanda McKenzie were produced in the state's supplemental response to discovery of March 3, 2017. The record does not indicate that a transcript of any statement of Rosemary Cleveland was produced to the defense prior to the article 768 notice. On February 5, 2018, the state filed a supplemental article 768 notice indicating its intent to introduce additional statements made by Brown to Rosemary Cleveland during a jailhouse phone conversation. The notice indicates that this information was obtained during an interview with Ms. Cleveland the day before the notice, on Sunday, February 4, 2018.

         In the meantime, on January 31, 2018, defense counsel filed a motion to continue and reset the trial that was scheduled for February 5, 2018. The motion cited the extended illness of IDB investigator Jamie Hudson and alleged that the IDB had been without an investigator "for a number of months" due to Hudson's illness. Brown alleged "a number of issues that need to be addressed which require an investigator," including statements allegedly made by Brown as noted in the state's initial Article 768 notice. The motion was heard that same day.

         During the hearing, defense counsel noted the illness and absence of Hudson. Counsel stated that this was the first continuance sought by the defense and contended that there would be no prejudice to the state if the motion was granted. Counsel cited the state's Article 768 notice and argued to the court that he had "been given" the names of several witnesses, and he did not know where they lived, and he "would love to have an investigator go out and talk to these people and tell me what - what he feels they're going to say and interview them…." Counsel also noted that the state's eyewitness had been appointed new counsel, and this weighed in favor of the continuance.

         The district attorney countered by first noting that the state would be prejudiced by a continuance due to the increased chance of losing witnesses, memories fading, and other problems and health issues of certain unnamed witnesses. The district attorney then emphasized that the case was two years old and referenced the fact that in 2016, Brown had filed a motion for speedy trial indicating his readiness to proceed to trial. The district attorney pointed out that defense counsel had questioned the lead investigator the previous year at the bond reduction hearing. He further noted that the state had complied with all discovery in prior years by providing all of the information necessary for defense counsel to investigate and prepare for trial. The district attorney argued that there was ample time to investigate prior to Hudson's illness, and at no time did the IBD make a request for another investigator during Hudson's illness.

         John Ellis, the newly appointed Chief Public Defender, also addressed the trial court. Ellis explained that he had been recently told by the interim chief that Hudson had been ill, and, after further inquiry, he learned that Hudson had passed away. Ellis advised that he then took immediate steps to hire a new investigator. He also informed the court that his office was not in possession of the files on which Hudson ...


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