State v. Brown

• Decision Date: 17 June 2020
• Docket Number: 19-682
• Citation: 299 So.3d 661
• Parties: STATE of Louisiana v. Cassetti Dewayne BROWN, Jr.
• Court: Court of Appeal of Louisiana — District of US

299 So.3d 661

STATE of Louisiana

v.Cassetti Dewayne BROWN, Jr.

19-682

Court of Appeal of Louisiana, Third Circuit.

June 17, 2020

Annette Fuller Roach, Louisiana Appellate Project, P. O. Box 1747, Lake Charles, LA 70602-1747, Telephone: (337) 436-2900, COUNSEL FOR: Defendant/Appellant – Cassetti Dewayne Brown, Jr.

Asa Allen Skinner, District Attorney – 30^th Judicial District, Terry W. Lambright, First Assistant District Attorney – 30^th Judicial District, P. O. Box 1188, Leesville, LA 71446, Telephone: (337) 239-2008, COUNSEL FOR: Plaintiff/Appellee – State of Louisiana

Jeffrey M. Landry, Attorney General, P. O. Box 94005, Baton Rouge, LA 70804, Telephone: (225) 326-6200, COUNSEL FOR: Other Appellee – Attorney General of the State of Louisiana

Cassetti Dewayne Brown, Jr., Main Prison Walnut Hall-2, Louisiana State Prison, Angola, La 70712, Defendant/Appellee – Cassetti Dewayne Brown, Jr.

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John E. Conery, and Van H. Kyzar, Judges.

THIBODEAUX, Chief Judge

On September 6, 2017, Defendant, Cassetti¹ Dewayne Brown, Jr., was charged by bill of information with possession with the intent to distribute a schedule II, controlled dangerous substance (CDS II) (cocaine), in violation of La.R.S. 40:967(A)(1) and (B)(4)(b)² (count one); possession of CDS II (methamphetamine), in violation of La.R.S. 40:967(C) (count two); illegal carrying of weapons in the presence of CDS, in violation of La.R.S. 14:95(E) (count three); and possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1 (count four). All of these charges had an offense date of June 9, 2017. On January 3, 2018, the State filed an amended bill of information, adding four new charges, all with October 31, 2017 offense dates: possession with intent to distribute CDS II (hydrocodone and oxycodone), in violation of La.R.S. 40:967(A)(1) and (B)(1)(a) (count five); possession with intent to distribute CDS II (cocaine) in violation of La.R.S. 40:967(A)(1) and (B)(1)(a) (count six); possession with intent to distribute CDS I (synthetic cannabinoids), in violation of La.R.S. 40:966(A)(1) and (B)(2)(a) (count seven); and possession with intent to distribute CDS I (marijuana), in violation of La.R.S. 40:966(A)(1) and (B)(2)(a) (count eight).

Mr. Brown proceeded to trial on November 13, 2018. On November 16, 2018, the jury found Mr. Brown guilty as charged on counts one, two, three, four, but not guilty as to counts five and eight. The jury also convicted Mr. Brown in counts six and seven by ten-to-two and eleven-to-one verdicts, respectively. After denying Mr. Brown's motion for new trial and adjudicating Mr. Brown a third felony offender with respect to count four and a fourth offender with respect to the remaining charges, the trial court, on May 8, 2019, sentenced Mr. Brown to an aggregate sentence of one-hundred sixty-five years at hard labor without benefit of probation, parole, or suspension of sentence by ordering the sentences for all counts, except for count seven, to run consecutively. Mr. Brown, thereafter, filed a motion to reconsider sentence, which the trial court denied without reasons.

For the following reasons, we affirm Mr. Brown's convictions in counts one through four, but remand this matter to the trial court for resentencing with concurrent sentences on counts one through four, with the length of the sentences to be in accordance with the enhanced sentencing provisions of the Habitual Offender Law, La.R.S. 15:529.1. Additionally, in light of the Supreme Court's recent holding in Ramos v. Louisiana , 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020),³ we vacate Mr. Brown's convictions and sentences and remand for a new trial on counts six and seven.

I.ISSUES

On original and supplemental brief, Mr. Brown through counsel raises seven assignments of error for this court's review:

1. the trial court erred in denying the Motion for New Trial filed on behalf of Mr. Brown.

2. the trial court erred in applying the incorrect version of La.R.S. 15:529.1 as to the applicable cleansing period, in limiting the defense's cross-examination during the habitual offender hearing, and in its ruling that the State had sufficiently proven that the five-year cleansing period had not been met.

3. the trial court erred in permitting the State to introduce the statement made by Appellant without first showing he had been properly advised of his Miranda rights.

4. the sentences imposed by the trial court violate the Eighth Amendment of the Constitution of the United States and La. Const. Art. I, § 20, as they are nothing more than cruel and unusual punishment and, thus, excessive, especially in light of the fact the trial court ordered that five of the sentences be served consecutively to each other.

5. the verdicts returned in this case on counts six and seven must be set aside as they were not returned by a unanimous jury, in violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States.

6. the verdicts returned in this case on counts six and seven must be set aside as they were not returned by a unanimous jury, in violation of the right to trial by jury set forth in the Sixth Amendment of the Constitution of the United States as interpreted by the courts.

7. trial counsel rendered assistance below that guaranteed by the Sixth Amendment and Appellant was prejudiced as a result of counsel's deficient performance.

Mr. Brown also raises two pro se assignments of error:

1. the trial court erred by denying a hearing on Mr. Brown's motion to suppress.

2. the affidavits for search warrants were insufficient and defective.

II.FACTS AND PROCEDURAL HISTORY

At sentencing, the trial court summarized the relevant facts as follows:

According to the offense reports, on June the 8th, 2017, a search warrant was obtained by the Vernon Parish Narcotics Task Force, based on the Task Force making three controlled buys of crack cocaine from 1729 Nona Street, Leesville, Louisiana during the months of April through June 2017. The controlled buys were made from a known drug dealer, Casetti Brown, Jr. On June the 9th, 2017, agents executed the warrant and made contact with Brown at the residence on Nona Street. During the investigation, search, and questioning of Mr. Brown, crack cocaine and weapons were found inside the residence. Mr. Brown was charged with possession of Schedule I with intent to distribute, possession of Schedule II methamphetamine with intent to distribute, possession of Schedule II cocaine with intent to distribute, possession of a firearm by a convicted felon, and possession of a firearm while in possession of a controlled dangerous substance. On October the 31st, 2017, another search warrant was obtained due to additional criminal activity supported by controlled purchases of illegal narcotics from Casetti Brown, Jr. at 1729 Nona Street, Leesville, Louisiana. Mr. Brown had bonded out on the earlier arrest and continued his criminal activity. Contact was made by Vernon Parish Narcotics Task Force, uh, and Casetti Brown, Jr., Jerry Brown, and Steven Brown were secured without incident. During the search, a substance was found that was field tested and was positive for cocaine. Another substance was found that was tested and was positive for methamphetamine. Another firearm was found in the residence and approximately 90 red-in-color seeds or plants were found which is a type of a poisonous plant.

By bill of information, dated September 6, 2017, and amended bill of information, dated January 3, 2018, the State charged Mr. Brown with counts one through four, with an offense date of June 9, 2017, and counts five through eight, with an offense date of October 31, 2017, respectively. Thereafter, Mr. Brown, on July 25, 2018, filed a motion to suppress evidence, seeking suppression of all evidence seized during searches of his residence along with all statements made prior to the advisement of his Miranda rights. The motion alleged the affidavits in support of the search warrants were insufficient to establish probable cause, thus rendering the searches warrantless and without consent. On August 3, 2018, the State filed an objection to the motion, alleging it was untimely filed. Following a contradictory hearing on August 8, 2018, the trial court granted the State's objection and ruled the motion to suppress was untimely under La.Code Crim.P. art. 521.

A jury found Mr. Brown guilty as charged on counts one, two, three, four, six, and seven, and not guilty on counts five and eight on November 16, 2018. While the verdicts on counts one through four were unanimous, Mr. Brown was convicted on count six by a ten-to-two verdict and on count seven by an eleven-to-one verdict. On January 10, 2019, Mr. Brown filed a "Motion and Order for New Trial," alleging his convictions were contrary to the law and evidence. Specifically, Mr. Brown challenged: (1) the trial court's November 9, 2018 denial of defense counsel's motion to withdraw; (2) the trial court's allowance at trial of the evidence addressed in the motion to suppress; (3) the trial court's denial of Mr. Brown's objections to evidence being introduced without the showing of a complete and uninterrupted chain of custody; (4) the trial court's allowance of Detective Noel Yates to be designated as a drug and narcotics expert; and (5) the trial court's allowance of the State to display a large picture of the fictional character Tony Montana, aka "Scarface," sitting at a table full of cocaine during voir dire.

Also, on January 10, 2019, the State filed a "Habitual Offender Bill of Information," charging Mr. Brown with being a third habitual offender with regard to his conviction for possession of a weapon by a convicted felon and as a fourth habitual offender for all other charges. On February 22, 2019, Mr. Brown filed an amended motion for new trial, adding two new rulings he alleged were erroneous: (1) the trial court's denial of a hearing...