APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 94-5632, DIVISION
"M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Thomas J. Butler Andrea F. Long Matthew R.
COUNSEL FOR DEFENDANT/APPELLANT, ERIC J. BROWN Christopher A.
composed of Judges Fredericka Homberg Wicker, Marc E.
Johnson, and Stephen J. Windhorst
FREDERICKA HOMBERG WICKER JUDGE
appellant Eric Brown's second appeal of his May 1996
conviction by a non-unanimous jury by a vote of ten to two
for second-degree murder (count one) and armed robbery (count
two), committed in 1994 when he was sixteen years old, and
for which he received, respectively, concurrent sentences of
life and thirty-years imprisonment at hard labor, neither
with benefit of parole, probation, or suspension of sentence.
Mr. Brown's first appeal immediately followed his trial.
This court affirmed his convictions and sentences in April of
1997. State v. Brown, 96-1002 (La.App. 5 Cir.
4/9/97), 694 So.2d 435, writ denied, 97-1310 (La.
10/31/97), 703 So.2d 19. The Louisiana Supreme Court's
denial of his writ later that year finalized his convictions
and sentences. Thereafter, pursuant to the United States
Supreme Court's 2015 decision in Montgomery v.
Louisiana, __U.S.__, 136 S.Ct. 718, 193 L.Ed.2d 599
(2016), however, the Louisiana Supreme Court granted Mr.
Brown's "Motion to Correct an Illegal Sentence"
and remanded his case to the trial court for a
"Miller hearing, " held on July 2, 2018. The
trial court, accordingly, cured Mr. Brown's life sentence
for second degree murder to comport with Miller by
rendering him parole eligible. The court again withheld such
benefit as to his thirty-year sentence for armed robbery.
Brown now appeals that revised life sentence, but assigns no
specific error as grounds for its reversal. His instant
appeal's primary purpose, rather, appears to be an
attempt to position his case as one still pending on direct
appeal when the United States Supreme Court ultimately
renders its forthcoming decision in Ramos v.
Louisiana, __U.S.__, 139 S.Ct. 1318, 203 L.Ed.2d 563
(2019), likely early in Spring 2020. Should the
Ramos court rule that the Fourteenth Amendment fully
incorporates the Sixth Amendment's guarantee of a
unanimous jury-such that any state court conviction by a
non-unanimous jury, like Mr. Brown's, would be
unconstitutional-Mr. Brown asserts that he would then be
automatically entitled to a retrial of his case, given that
his case "is still pending on direct review and not yet
following reasons, however, we affirm his convictions'
finality. Issues related to his conviction are not properly
before this court on the instant appeal, given that all such
issues already have or should have been heard during his
first appeal. This current appeal's sole focus is issues
relevant to his resentencing. Since Mr. Brown raises no such
issues, we affirm his sentences as well. Thus, even should
Ramos be decided prior to rendition of this opinion,
Mr. Brown would not be entitled to automatic and immediate
application of any new favorable rule, but instead will have
to seek such benefit via collateral review, assuming the rule
is indeed retroactive. Finally, we decline to opine as to
whether a ruling in Ramos declaring non-unanimous
verdicts unconstitutional would be among those
"watershed rules of criminal procedure" warranting
retroactive applicability under the Teague
framework. Doing so would amount to an inappropriate
facts of this case were previously set forth in
Brown, 694 So.2d at 436:
The crimes Brown was convicted of occurred on August 25, 1994
in Kenner, Louisiana. On that day, a woman named Valencia
Peabody left her apartment for work leaving her boyfriend,
Carmelo Salminen, asleep in the master bedroom and Brown, a
friend of Salminen, asleep on a downstairs sofa. Brown had
spent the night in the apartment.
When Peabody returned to the apartment during her lunch
break, she noticed that Salminen's vehicle was gone. She
went inside and found that Salminen had been shot and was
Responding to Peabody's complaint, police officers
arrived on the scene within minutes. They found the upstairs
area of the apartment ransacked and they learned that various
items were missing, including three guns, a briefcase, a safe
and a tote bag. There were no signs of forced entry.
A neighbor, Ruth McKinnies, testified at trial that at
approximately 9:00 a.m. she had observed Brown exit the
apartment and drive Salminen's vehicle up to the front
door. Brown then began loading the vehicle with items taken
from the apartment.
Later that day, the police received a report that the
briefcase had been located in a dumpster behind a Taco Bell
shop at 3117 Loyola Avenue in Kenner. When the officers
arrived there to retrieve the briefcase, they observed
Salminen's vehicle nearby in the parking lot across from
the apartment of Brown's sister.
Subsequently, a warrant for Brown's arrest was issued
along with a search warrant for the apartment of his sister.
While searching the apartment, officers found Brown hiding in
An autopsy revealed that Salminen was fatally shot in the
back of the head at a distance ranging from two to five
inches and that the time of death was between 8:49 and 10:49
stated, this is Mr. Brown's second appeal. This appeal
has been consolidated with pending writ application
19-KH-374, State v. Brown. On October 6, 1994, a
Jefferson Parish Grand Jury returned an indictment charging
defendant, Eric J. Brown, with first-degree murder in
violation of La. R.S. 14:30 ("count one"), and
armed robbery in violation of La. R.S. 14:64 ("count
two"). On November 6, 1995, the State amended count one
to second-degree murder in violation of La. R.S. 14:30.1.
a four-day jury trial that started on April 30, 1996, Mr.
Brown was convicted as charged on both counts. Mr. Brown was
sentenced to life imprisonment without the benefit of parole,
probation, or suspension of sentence on count one, and thirty
years imprisonment at hard labor without the benefit of
parole, probation, or suspension of sentence on count two, to
run concurrently. On his first appeal, this Court affirmed
Mr. Brown's convictions and sentences. On October 31,
1997, the Louisiana Supreme Court denied writs. In the years
that followed, Mr. Brown sought post-conviction relief with
this and other courts, none of which were granted.
September 11, 2012, in light of the United States Supreme
Court's decision earlier that year in Miller v.
Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407
(2012), Mr. Brown filed a "Motion to Correct Illegal
Sentence" arguing that his original life sentence
without parole on count one for second-degree murder was
illegal given that he was a minor at the time of his
crimes' commission. Mr. Brown's date of birth is May
19, 1978. Therefore, at the time of the offenses on August
25, 1994, he was sixteen years old.
1, 2015, the trial court denied Mr. Brown's motion,
relying on the Louisiana Supreme Court's decision in
State v. Tate, 12-2763 (La. 11/5/13), 130 So.3d 829,
but noting that the U.S. Supreme Court had granted certiorari
in State v. Montgomery, 13-1163 (La. 6/20/14), 141
So.3d 264. Mr. Brown thereafter sought relief with this
Court, which we denied. State v. Brown, 15-395
(La.App. 5 Cir. 7/8/15) (unpublished writ disposition).
2016, Mr. Brown continued to seek resentencing under
Miller, and he also sought relief with the Louisiana
Supreme Court challenging this Court's writ decision.
That same year, the United States Supreme Court decided
Montgomery v. Louisiana, __U.S. __, 136 S.Ct. 718,
193 L.Ed.2d 599 (2016). As such, the Louisiana Supreme Court,
in State ex rel. Brown v. State, 15-1405 (La.
9/23/16), 200 So.3d 345 (per curiam), ordered:
Writ granted; case remanded. In light of the Supreme
Court's holding in Montgomery v. Louisiana
[citation omitted] that Miller v. Alabama [citation
omitted] announced a substantive rule of constitutional law
that applies retroactively, we remand the case to the
24thJudicial District Court for further
proceedings consistent with the views expressed in State
v. Montgomery [citation omitted], and for resentencing
pursuant to La.C.Cr.P. art. 878.1.
compliance with the Louisiana Supreme Court's directive,
on July 2, 2018, the trial court held a Miller
hearing, and the hearing was left open for the filing of
post-hearing memoranda. On October 11, 2018, the trial court
vacated Mr. Brown's sentences and resentenced him to
"life in prison with benefit of parole" on count
one for second-degree murder. It also reimposed the
thirty-year sentence at hard labor without the benefit of
probation, parole, or suspension of sentence on count two for
armed robbery. The sentences were ordered to run concurrently
with each other.
January 31, 2019, Mr. Brown filed a "Notice of
Appeal," challenging his life sentence with parole
eligibility, and also a motion to reconsider his life
sentence. On February 4, 2019, the trial court granted Mr.
Brown an out-of-time appeal. Also on February 4, 2019, the
trial court denied Mr. Brown's motion to reconsider his
to the granting of the order of appeal, on March 19, 2019,
Mr. Brown, pro se, filed a Uniform Application for
Post-Conviction Relief. On March 20, 2019, the trial court
dismissed Mr. Brown's application without prejudice,
finding that the application was premature, and that it had
been divested of jurisdiction to rule upon the application
upon the entering of the order of appeal.
August 6, 2019, Mr. Brown filed a writ application with this
Court (19-KH-374). Due to Mr. Brown's constitutional
challenge to La. Const. Art. 1, § 17 and La. C.Cr.P.
art. 782, the Louisiana Attorney General's Office was
notified of the writ application's filing. On September
17, 2019, the Attorney General's Office filed an
opposition to the writ, arguing that the trial court
correctly declined to address the merits of Mr. Brown's
premature application, and therefore that Mr. ...