State v. Brown, No. 2003 KA 1076 (La. App. 12/31/2003)

• Decision Date: 31 December 2003
• Docket Number: No. 2003 KA 1076.,2003 KA 1076.
• Parties: STATE OF LOUISIANA, v. ARLEN BROWN.
• Court: Court of Appeal of Louisiana — District of US

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STATE OF LOUISIANA, v. ARLEN BROWN.

No. 2003 KA 1076.

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: December 31, 2003.

ON APPEAL FROM THE 23RD JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF ASCENSION STATE OF LOUISIANA TRIAL COURT NO. 10949, HONORABLE RALPH TUREAU, JUDGE PRESIDING.

ANTHONY G. FALTERMAN District Attorney Gonzales, LA, Attorney for Appellee State of Louisiana.

By: DONALD D. CANDELL Assistant District Attorney.

PATTI DURIO HATCH Baton Rouge, LA, Attorney for Appellant Arlen Brown.

Before: CARTER, C.J., PARRO, and GUIDRY, JJ.

CARTER, C.J.

The defendant, Arlen Brown, was charged by grand jury indictment with: three counts of second-degree kidnapping, a violation of LSA-R.S. 14:44.1; two counts of aggravated crime against nature, a violation of LSA-R.S. 14:89.1; one count of attempted aggravated rape, a violation of LSA-R.S. 14:27 & 42; and one count of attempted second-degree murder, a violation of LSA-R.S. 14:27 & 30.1. The offenses involved three separate victims and were alleged to have occurred on three different dates. On the morning of trial, the State amended the bill of indictment to delete one count of second-degree kidnapping and one count of aggravated crime against nature. The remaining counts involved only two victims, K.S. and P.T. Defendant pled not guilty to all counts.

After a trial by jury, defendant was found guilty as charged on one count of second-degree kidnapping and one count of attempted second-degree murder with respect to K.S. He was found guilty as charged on one count of aggravated crime against nature with respect to P.T. Defendant was acquitted on one count of second-degree kidnapping and one count of attempted aggravated rape with respect to P.T. He filed a motion for new trial, which was denied. He was sentenced to twenty-five years' imprisonment for his conviction of second-degree kidnapping; to five years' imprisonment for his conviction of aggravated crime against nature; and to twenty-five years' imprisonment for the crime of attempted second-degree murder. All sentences were imposed at hard labor and without benefit of parole, probation, or suspension of sentence. The trial judge ordered all sentences to run concurrently.

On appeal, defendant relies on the following assignments of error for reversal of his convictions and sentences:

1. The evidence was insufficient to support the verdict of attempted second-degree murder of K.S.

2. The evidence was insufficient to support the verdict of second-degree kidnapping of K.S.

3. The evidence was insufficient to support the verdict of aggravated crime against nature as to P.T.

4. The trial court erred in denying defendant's motion for new trial.

For the following reasons, we affirm defendant's convictions and sentences.

FACTS

This case involves offenses that occurred on two different dates and with respect to two different victims. P.T., the first victim, testified that at about 9:30 p.m. on January 4, 1998, she was at Church's Fried Chicken on Scenic Highway in Baton Rouge. Defendant, who was stopped nearby, called her over to his truck. He asked her if she wanted to go for a ride with him, and she agreed to do so. She saw he had a large gun in his lap, but she thought nothing of it, because she knew many people who carried weapons in that area of town. According to P.T., defendant was nice looking and had a nice vehicle. She hoped a relationship might develop with him.

As defendant drove an increasing distance from the area where they began their ride, P.T. became concerned and asked to be taken home. Her concern increased as he passed up exit after exit on Interstate 10. He insisted she keep her head down in the vehicle so she would not be seen. Defendant eventually exited I-10 in Ascension Parish and stopped on a small dirt road. He accidentally backed into the tail light of an empty truck parked at a nearby business. The two got out to look at the damage. Then defendant told P.T. to take her clothes off, grabbed her by the hair, ordered her to listen to him, and told her he had just gotten out of prison for murdering someone.

P.T. testified that she complied with the defendant's demands because she was afraid of him and his gun. Defendant attempted to have sex with her against her will, but he was unable to complete the act. All the while, his weapon was within reach. Then he ordered P.T. back into the truck and forced her to perform oral sex on him. He threatened to kill her if she did not satisfy his demands. Afterward, he ordered her out of the truck and onto her knees. He initially pointed his gun at the back of her head and threatened to "blow [her] brains out." Then he let her get up and told her to run. When she heard the truck pull away from the area, P.T. went to the road and found a service station. There she asked an attendant to telephone the police and report that she had been kidnapped.

After investigating this incident and a subsequent similar incident, police officers compiled a photographic lineup, and P.T. pointed defendant out as her assailant. She also identified him in court as the man who forced her to go to Ascension Parish with him against her will. P.T. insisted at trial that she had not wanted to have sex with defendant. She admitted during cross examination that she had "hustled" sex for money in the past, but she insisted such was not her intention that night with this man and she did not ask him for money.

K.S., the second victim, testified that at about 3:00 a.m. on February 1, 1998, she spotted the defendant at a car wash on Plank Road in Baton Rouge. She admitted she was "dating" that night to make money to get drugs. When the defendant approached her, she told him what she would charge to have sex with him, and she willingly got into his truck to go to a place where they could consummate their transaction.

Defendant got on I-10 eastbound, over K.S.'s objection. She did not want to leave her "turf" where she felt relatively safe. She asked defendant to take her back to her area. He refused and proceeded to Prairieville. Defendant was going too fast for her to jump out of his truck, and she repeatedly asked him to return her to North Baton Rouge. Defendant got off I-10 and proceeded to a small dirt road. When they stopped, he pulled a gun out and ordered K.S. to undress.

At this point, she tried to figure out how to escape. She told defendant she had to go to the bathroom. Just before she got out of the truck, defendant said, "Bitch, if you run, I'm going to kill you." K.S. jumped out of the vehicle and ran behind some other trucks parked nearby. Defendant then fired his gun at her and missed. He continued firing and eventually hit her in the arm, but she was able to hide until he left the area.

K.S. asked for assistance from residents in the area, who called the police to the scene. She helped generate a composite sketch and eventually picked defendant out of a photographic lineup. She took police to the scene of the crime and described defendant's vehicle as a dark truck with a gray interior.

On cross examination, K.S. admitted previous convictions for prostitution. She also admitted she had smoked cocaine in defendant's truck. According to K.S., she finished a small amount of cocaine in a cocaine pipe shortly after she got on the road with defendant. She insisted she was not high when they stopped in Prairieville and denied having a switchblade with her that evening.

Neither P.T. nor K.S. had any idea of the identity or occupation of the man they accused as their assailant. Detective Knoll King, Jr., of the Ascension Parish Sheriff's Office investigated both incidents. After receiving P.T.'s report, he found evidence of damage to the front of an 18-wheel truck at the crime scene, just as P.T. had described. In addition, he found part of a red tail light suspected to belong to the perpetrator's truck. The tail light was identified as coming from a Dodge pickup truck of the 1994 to 1998 series.

Detective King also took the report from K.S., who took him to the same crime scene that P.T. had described. There, he recovered five spent .40-caliber shell casings. One was recovered from the area where the perpetrator appeared to have parked. A blood trail began about 60 to 70 feet from that location. The other four spent casings were recovered from under a large white truck and a tractor-trailer rig where K.S. had sought cover. The spent casings were found within 10 feet of each other. Based on the evidence collected and victim accounts, investigating officers felt the same perpetrator had committed both offenses.

In the course of his investigation, Detective King contacted auto dealerships. A sales representative at a nearby dealership recalled selling a left rear tail light to a man in a black Dodge truck that had a Marine Corps license plate. Further information led officers to an apartment complex in Gonzales, where a black Dodge truck with gray interior was parked. It had left rear damage and a Marine Corps license plate. The truck belonged to defendant.

Detective King then discovered defendant was a Gonzales police officer who had been issued a .40-caliber Glock weapon. It fired the same caliber bullets as those used at the crime scene. The victims identified defendant from photographic lineups, and officers obtained an arrest warrant and search warrants. Defendant was located and consented to a search of his truck and apartment. A semiautomatic gun was found at his residence with .40-caliber Winchester bullets matching those found at the scene. Officers also found ostrich skin cowboy boots that matched the victims' descriptions of those worn by their assailant. A work schedule was obtained showing defendant was off duty at the time of both crimes. Forensic scientist Patrick Lane confirmed at trial that each of the five shell casings found at the crime scene came from defendant's service weapon.

After being given his Mi...