State v. Brister

• Decision Date: 20 March 2020
• Docket Number: 19-507
• Citation: 297 So.3d 992
• Parties: STATE of Louisiana v. Ray Donald BRISTER, Jr.
• Court: Court of Appeal of Louisiana — District of US

297 So.3d 992

STATE of Louisiana

v.Ray Donald BRISTER, Jr.

19-507

Court of Appeal of Louisiana, Third Circuit.

March 20, 2020

Defendant, Ray Donald Brister, Jr., appeals following his convictions and sentences for manslaughter and possession of a firearm by a convicted felon. For the reasons herein assigned, we affirm in part, reverse in part, set aside the convictions and the sentences on each, and remand to the district court for proceedings consistent herewith.

FACTS AND PROCEDURAL HISTORY

Defendant was charged by Bill of Information filed February 13, 2017 with one count of manslaughter in violation of La.R.S. 14:31(1) and one count of possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1. On November 13, 2018 Defendant entered an Alford¹ plea to both counts of the bill of information, with an agreed upon sentencing cap of thirty-five years. The plea was entered pursuant to State v. Crosby .²

The facts of the case leading to the plea show that on December 25, 2016, Lake Arthur police received a report that a person had been shot. Upon arrival, Officer Scott Patch found a male lying on the ground with a gunshot wound

to his chest. There were a number of people around the victim, and the officer asked if anyone saw who had shot the victim. Certain members of the crowd responded that Defendant was the shooter, after which Officer Patch placed Defendant under arrest. Police interviewed Defendant and learned that he and the victim, Shaft Quinn Francis, were first cousins, that Defendant and Francis had been arguing prior to that date, and that the two had continued to argue on Christmas day. Defendant later shot the victim while arguing again. Defendant claimed the shooting was in self-defense.

During the course of the case, Defendant filed a motion to suppress his confession or inculpatory statement given to Assistant Police Chief Terrie Guillory of the Lake Arthur Police Department on the date of the homicide. He urged in the written motion filed in the trial court that "[t]he statements which may incriminate the defendant were made within a short time of the incident[,]" that "the video recording shows the defendant was crying, his hand were shaking, he was having trouble breathing and was obviously highly emotional disturbed and mentally upset by what had just transpired[,]" and that "because of his highly distraught state and the short time lapse between the incident and the interview any waiver of his [ Miranda ] rights and agreement to speak to police without an attorney present was not knowingly and intellectually done." Following the hearing on November 13, 2018, the trial court denied the motion.

Defendant also filed a motion in support of his claim of self-defense to permit him to introduce at trial evidence of hostile acts of the victim towards Defendant, including overt acts immediately preceding the crime and two previous incidents. That motion was also heard on November 13, 2018. At the conclusion of the testimony of Defendant and arguments of counsel, the trial court denied the motion.

Defendant later entered his plea reserving his right to appeal the rulings of the trial court denying his motions. The plea was entered with an agreement that the maximum sentence Defendant was exposed to would be a total of thirty-five years in prison. He was sentenced on January 28, 2019 to serve twenty-five years at hard labor for the offense of manslaughter and, in addition, he was ordered to serve ten years at hard labor without the benefit of parole, probation or suspension of sentence for the offense of possession of a firearm by a convicted felon, with the two sentences to run consecutively with each other. Defendant filed a motion to vacate his sentence and for resentencing; which motion was denied.

This appeal followed, wherein Defendant urges three assignments of error as follows:

1. The trial court erred in denying the Motion to Suppress the statement of Ray Donald Brister, Jr. which was not freely and voluntarily given due to the circumstances and Ray Brister's highly emotional state at the time.

2. The trial court deprived Ray Donald Brister, Jr. of his constitutional right to present a defense when it denied the defense motion to present evidence of the victim's dangerous character, including evidence of prior hostile encounters.

3. Should this honorable court find review of the adverse rulings discussed in assigned errors No. 1 and 2 precluded due to the failure of defense counsel to specify on the record which rulings were preserved pursuant to State v. Crosby , Mr. Brister was denied effective assistance of counsel for counsel's failure to articulate which rulings were being preserved for review on appeal.

ERRORS PATENT

This Court reviews the record for errors patent and finds two. See La.Code Crim.P. art. 920(2). First, the sentencing court failed to impose the sentence for possession of a firearm by a convicted felon at hard labor even though a sentence for that offense must be served at hard labor. La.R.S. 14:95.1. Thus, the sentence is illegally lenient. See State v. Perkins , 13-245 (La.App. 3 Cir. 11/6/13), 124 So.3d 605. Second, the sentencing court was required to impose a fine of not less than one thousand dollars nor more than five thousand dollars for Defendant's conviction of possession of a firearm by a convicted felon. La.R.S. 14:95.1. The trial court failed to impose the mandatory fine, rendering the sentence for possession of a firearm by a convicted felon illegally lenient for this reason as well. However, considering our decision herein vacating Defendant's convictions and sentences, these errors are moot.

DISCUSSION

Ineffective Assistance of Counsel

We first consider assignment of error number three wherein Defendant contends that counsel was ineffective, in the event this court determines that no issues were preserved for appeal due to counsel's failure to specify which errors were being reserved at the time of the entry of his plea pursuant to State v. Crosby. Specifically, Defendant asserts that if this court is precluded from reviewing assigned errors one and two, counsel was ineffective.

The Louisiana Supreme Court granted a defendant's writ application on this issue in State v. Joseph , 03-315 (La. 5/16/03), 847 So.2d 1196. The Joseph defendant did not specifically reserve the pre-trial rulings on which he sought appellate review. The court stated:

Granted. A defendant's failure to specify which pre-trial rulings he desires to reserve for appeal as part of a guilty plea entered pursuant to State v. Crosby , 338 So.2d 584 (La. 1976), may limit the scope of appellate review but should not preclude review altogether. See Crosby , 338 So.2d at 586 ("If we are not able to afford the accused their bargained-for appellate review, we must set aside the guilty pleas .... because of the non-performance of the plea bargain (or the impossibility of the state to perform it) by virtue of which the plea was obtained."); see also State v. Singleton , 614 So.2d 1242, 1243 (La. 1993) ("To the extent that counsel also reserved appellate review of sentence as part of the guilty plea, denial of that review ... would jeopardize the voluntariness of those pleas."). Absent a detailed specification of which adverse pre-trial rulings the defendant reserved for appellate review as part of his guilty plea, an appellate court should presume that the trial court permitted a Crosby reservation no broader than necessary to effectuate the underlying purpose of conditional guilty pleas, i.e. , to preserve review of evidentiary rulings which "go to the heart of the prosecution's case" that a defendant would otherwise waive by entering an unqualified guilty plea. Crosby , 338 So.2d at 591. Such rulings typically include denial of a motion to suppress evidence or a confession and exclude rulings which may affect the conduct of trial but "which do not substantially relate to guilt, such as the denial of a continuance or severance." Id. In the present case, to avoid jeopardizing the voluntariness of the defendant's guilty plea, the court of appeal should afford defendant review of the trial court's denial of his motion to suppress the evidence but need not address his second assignment of error relating to the trial court's denial of his motion for a continuance.

Id. at 1196-97. Nevertheless, this court distinguished Joseph , 847 So.2d 1196, in State v. Cummings , 07-1304, pp. 6-7 (La.App. 3 Cir. 4/30/08), 983 So.2d 246, 251, writ denied, 08-1187 (La. 2/20/09), 1 So.3d 489 :

We cite Joseph in order to do a thorough review of this appeal. Even though we cite the case, we find that it does not apply to the instant case for two reasons. First, Defendant specifically reserved the right to contest the ruling on his motion to suppress at the time he pled guilty, and he was silent as to the trial court's denial of his motions for discovery. We shall not extend the Joseph rule to instances when, at the time of his guilty plea, the defendant made a specific reservation of pre-trial judgments to contest on appeal and assigned error to a judgment not contained in that reservation.

Second, even if we would apply Joseph , Defendant is not entitled to a review of the ruling denying him access to the recording of the drug transaction. The only charges against Defendant arise from events occurring on the day following the drug transaction, and examination of the record does not reveal any notice by the State that it intended to introduce other crimes evidence at trial, so the denial of the CI evidence does not substantially relate to Defendant's guilt on the charged offenses.

Therefore, Defendant waived this claim when he failed to specifically reserve his right to contest the trial court's denial of his motions for discovery.

Here, Defendant did not specifically reserve one issue for appeal and raise an additional, unreserved issue as did the Cummings defendant. Additionally, this court essentially found, in...