State v. Brown

• Decision Date: 16 February 2022
• Docket Number: 2021 KA 0625
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE OF LOUISIANA v. ZARIUS J. BROWN

STATE OF LOUISIANA v. ZARIUS J. BROWN

No. 2021 KA 0625

Court of Appeals of Louisiana, First Circuit

February 16, 2022

NOT DESIGNATED FOR PUBLICATION

Appealed from the Twenty-Second Judicial District Court In and for the Parish of Washington State of Louisiana Docket Number 18-CR10-139415 Honorable William H. Burris, Judge Presiding

Warren L. Montgomery District Attorney J. Bryant Clark, Jr. Iain Dover Assistant District Attorneys Covington, Louisiana Counsel for Appellee State of Louisiana

Gwendolyn K. Brown Baton Rouge, Louisiana Counsel for Defendant/AppellantZarius J. Brown

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

GUIDRY, J.

The defendant, Zarius J. Brown, was charged by bill of information with attempted first degree murder of a peace officer (count 1), a violation of La. R.S. 14:27 and La. R.S 14:30; illegal possession of stolen things (value of $1, 000 -$5, 000)(count 2), a violation of La. R.S. 14:69; and aggravated criminal damage to property (count 3), a violation of La. R.S. 14:55.He pled not guilty and, following a jury trial, was found guilty as charged on all counts.The defendant filed a motion for new trial, which was denied.For the attempted first degree murder conviction, the defendant was sentenced to forty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.For the illegal possession of stolen things conviction, the defendant was sentenced to five years imprisonment at hard labor.For the aggravated criminal damage to property conviction, the defendant was sentenced to twelve years imprisonment at hard labor.The sentences were ordered to run concurrently.The defendant filed a motion to reconsider sentence, which was denied.The defendant now appeals, designating six assignments of error.We reverse the convictions and sentences on all counts and remand for a new trial.

FACTS

The three Pires brothers owned a house-building business in New Orleans.They owned some dump trucks, two Bobcats and a Caterpillar (skid steers).One of the dump trucks, which was carrying the Caterpillar, was stolen.The Caterpillar had a GPS tracker on it, which indicated the Caterpillar was in Washington Parish.On July 30, 2018, the brothers drove to Washington Parish to locate their property.Rafael Pires was driving around when their dump truck passed him.The Caterpillar was not on the truck.Rafael turned around, followed the truck, and called 911.Shortly thereafter, Rafael lost sight of the truck.

Lieutenant Brent Goings, with the Washington Parish Sheriff's Office, was

in the area and received the dispatch of a stolen truck.Lieutenant Goings's police unit was a white Dodge Charger.Lieutenant Goings saw the dump truck, driven by the defendant, at the intersection of Highways 1056 and 450.Lieutenant Goings got behind the defendant and activated his lights and sirens.The defendant did not stop.After about a two-mile chase, the defendant stopped on Union Chapel Road, and Lieutenant Goings stopped behind him and put his vehicle in park and waited.Lieutenant Goings began to step out of the Charger when he saw the defendant put the truck in reverse, whereupon he got back inside the Charger.The defendant pushed the Charger back until it hit an embankment and could not be pushed back any farther.Lieutenant Goings got out of his vehicle and fired several shots at the driver's side door of the truck, then took cover behind his own vehicle.

Shortly thereafter, backup arrived.Officers checked the truck, but the defendant had fled.A canine team was called, and the defendant was found lying in the high brush about thirty-five yards from Union Chapel Road.

The Caterpillar was found in a nearby wooded area.It appeared to have fallen from the dump truck and was damaged.In addition to the bullet holes in the door and the damage to the hood, the ignition on the dump truck had been broken.

The defendant did not testify at trial.^[1]

The defendant's assignments of error are as follows:

1.The trial court erred in denying the defendant's requests for continuance.

2.The trial court erred in proceeding to trial without the defendant and without taking any protective actions to preserve the integrity of the trial.

3.The evidence is insufficient to support the conviction for attempted first degree murder.

4.The trial court erred in instructing the jury regarding the State's burden of proof with respect to the charge of attempted first degree murder.

5.The defendant was denied the effective assistance of counsel.

6.The trial court erred by denying the motion for new trial.

ASSIGNMENT OF ERRORNO. 1

In his first assignment of error, the defendant argues the trial court erred in denying his request for a continuance.Specifically, the defendant contends he was unprepared to go forward when, prior to voir dire, the State amended the charge of simple criminal damage to property to aggravated criminal damage to property.^[2]

Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in La. R.S. 14:55, by any means other than fire or explosion.La. R.S. 14:56(A)(1).Aggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.La. R.S. 14:55(A).

Both crimes are similar and both are general intent crimes.See La. R.S. 14:10(2);State v. Elliott, 19-0029, p. 6(La.App. 1st Cir.7/22/19), 2019 WL 3296982, at *3(unpublished);State v. Dawson, 18-0257, p. 5(La.App. 1st Cir.9/21/18), 2018 WL 4520104, at *2(unpublished).With the amended bill of information, the State took on the added burden of having to prove the extra element of the foreseeability that human life might be endangered.At any rate, defense counsel had been representing the defendant for well over a year in this case, which involved rather straightforward facts.It could not have surprised defense counsel that ramming a police vehicle with a large dump truck might endanger human life and that at any time the State could have amended the bill of information.Moreover, the State offered to sever the aggravated criminal damage to property charge and proceed to trial on the other two counts.Defense counsel declined the offer, but still insisted he needed more time to adequately prepare.

Louisiana Code of Criminal Procedure article 489 provides in pertinent part:

If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time.In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution.

As a general rule, the denial of a continuance is not grounds for reversal of a criminal conviction absent an abuse of discretion and a showing of specific prejudice caused by denial of the continuance.It is incumbent upon the defendant to show in what respect his defense has been prejudiced by the amendment of the bill.State v. Delandro, 01-2514, p. 5(La.App. 1^st Cir.5/10/02), 818 So.2d 1011, 1015.

We agree with the trial court's reasoning in denying the motion for a continuance wherein it found in pertinent part:

And certainly given the factual similarity, it certainly should have triggered some kind of response or notice that this was going to come.

Nevertheless, there's no surprise information here.The prior bad act was known, and it has been known for some time.The matter has been set at least as a back-up priority on two separate occasions, as far as I can recall.So we will move forward today.

As to the amended bill, certainly they can amend it at any given time.However, given the opportunity that the assistant district attorney has offered to sever that, I don't think that there's any prejudice, if you don't want to move forward.

I mean factually, it's going to be the same facts that come forward.It is an additional element of the crime.And I understand your argument as to that.But I don't think that that would really alter the way that you would prepare and try the case.

But if you do feel that you would be prejudiced by hearing that, the opportunity to sever it and have it at a separate time period certainly has been presented.And I'll give you a couple minutes to discuss that.

This assignment of error is without merit.

ASSIGNMENT OF ERRORNO. 2

In his second assignment of error, the defendant argues the trial court erred in proceeding to trial without his presence and without taking any protective actions to preserve the integrity of the trial.Specifically, the defendant contends the trial court made no effort to ascertain whether the defendant's absenting himself from trial was voluntary.

On the first day of trial, the defendant was with defense counsel while the first panel of prospective jurors on voir dire were questioned by the trial court and then by the prosecutor.Following this questioning, the trial court took a recess for a ten to fifteen minute restroom break.During this break the defendant left the courthouse and did not return.

The trial court noted that the defendant had voluntarily absented himself after trial had commenced.Thus, according to the trial court, the defendant's presence was not required, and the trial would continue.The following exchange then took place:

By Mr. Hjortsberg [defense counsel]: . . . Furthermore, from my perspective, I don't intend to get up there and

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