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State v. Brown

Court of Appeals of Louisiana, Fifth Circuit

January 15, 2020



          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Thomas J. Butler Andrea F. Long Matthew R. Clauss


          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst


         This is 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, "[1] 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.

         Mr. 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 final."

         For the 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.[2] Doing so would amount to an inappropriate advisory opinion.

         Factual Background

         The 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 dead.
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 a closet.
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 a.m.

         Procedural History

         As 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.

         Following 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.[3] 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.

         On 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.

         On May 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).

         In 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.

         In 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.

         On 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.[4] Also on February 4, 2019, the trial court denied Mr. Brown's motion to reconsider his life sentence.

         Subsequent 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.

         On 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. ...

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