State v. Brown

• Decision Date: 31 March 2004
• Docket Number: No. 2003-KA-1616.,2003-KA-1616.
• Citation: State v. Brown, 871 So.2d 1240 (La. App. 2004)
• Parties: STATE of Louisiana v. Bruce E. BROWN.
• Court: Court of Appeal of Louisiana

871 So.2d 1240

STATE of Louisiana v.Bruce E. BROWN.

No. 2003-KA-1616.

Court of Appeal of Louisiana, Fourth Circuit.

March 31, 2004.

Eddie J. Jordan, Jr., District Attorney, David M. Abdullah, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff/Appellee.

William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant/Appellant.(Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge LEON A. CANNIZZARO Jr.).

DENNIS R. BAGNERIS SR., Judge.

On September 5, 2002the State filed a bill of information charging the defendant with the burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2.On October 8, 2002he pleaded not guilty.On October 24, 2002the trial court found probable cause.On November 6, 2002the defendant filed a motion to dismiss.On November 11, 2002he withdrew his pro se motion to dismiss.¹On November 20, 2002 a jury found the defendant guilty as charged.On January 28, 2003the State filed a multiple bill charging the defendant as a triple offender, and he pleaded not guilty.On February 27, 2003the State withdrew the multiple bill.The trial court ordered a pre-sentence investigation.On June 23, 2003the court denied defense motions for a new trial and for a post verdict judgment of acquittal.The trial court sentenced the defendant to twelve years at hard labor to run consecutively to any other sentence with the first year to be served without benefit of probation, parole, or suspension of sentence; the court indicated that the defendant was to serve the entire twelve years, and he was not to be placed on probation.The court denied the defendant's request to be recommended for a DOC drug rehabilitation program.The trial court denied the motion to reconsider sentence and granted the motion for appeal.

STATEMENT OF FACT

On November 20, 2003the State put on the record that the defendant, who was to be multiple billed as a third offender, was offered a plea bargain to being a second offender and turned down the offer.

Detective Alfred Celestine testified that on March 28, 2002he was on the night watch (from 11:00 p.m. to 7:00 a.m.) in the Fischer Housing Development in Algiers.He said that at 11:34 p.m. he responded to a burglary call from 2346 Somerset.When he arrived at the scene about 11:39 p.m., three white males were holding down a black male suspect sitting on a red bicycle with a brown purse slung over his shoulder.A host of neighbors were pointing in their direction.The suspect was struggling to get away.The detective handcuffed the black male in order to find out what was going on.Detective Celestine stated that he spoke to Gary Ballinger, a neighbor from across the street, Rick McCarty and his wife, Patricia, the residents of the house that was burglarized.In Mr. McCarty's front yard on the grass, the detective found computer accessories, some CDs, CD ROMs, a computer system in a bag, a bunch of wires, and some movies.Mr. McCarty said that the items belonged to him.Detective Celestine advised the defendant that he was under arrest and searched his pockets.The detective found a screwdriver, two pocket knives, a flashlight, and a red and black bag.He said that the bike was also taken as evidence.The detective called out the crime lab, and photographs were taken.He identified the photographs at trial.The defendant complained of a leg injury; therefore, the detective relocated him to Charity Hospital where he was treated and released.Detective Celestine identified the defendant in court.

On cross-examination the detective stated that the defendant was lying partially on top of the bike on the grass between the sidewalk and the street when the officer arrived at the scene.The red bag was sticking out of the back side of the defendant's jeans.A black case was near the defendant on the ground.Detective Celestine said that the crime lab technician moved the items before the photographs were taken.He did not recall any fingerprint dusting.The detective admitted that he did not see the defendant inside any residence or in possession of the black bag full of items.The black bag was on the ground.He stated that the empty red bag was on the defendant's person, and the brown purse was around his neck.

Detective Mark Bonvillian testified that he was part of the investigative team.His job was to interview the subject being held at the scene.When he arrived, he noticed the defendant in handcuffs in the back seat of a police unit, a bicycle on the ground, and some property, which had been taken from a residence in the area, lying on the ground next to the bicycle.He could not recall the color of the bike.There were also some tools, a flashlight and a screwdriver, on the ground.The detective identified a number of the photographs.He did not inspect or enter the residence.

On cross-examination Detective Bonvillian admitted that he did not see the defendant in any residence or the property in the defendant's possession.

Mrs. Patricia McCarty, who resided at 2346 Somerset Street, testified that on the night of March 28, 2002, she was lying on the floor in her residence watching television waiting for her daughter, who was out that night.Her daughter arrived and went to bed.Her husband was sleeping, and she drifted off to sleep.Mrs. McCarty stated that her dog started barking, and she woke up.She heard talking outside on the street and then screaming.She woke up her husband, Rick, who started to put on clothes.She opened the front door, and one of her neighbors, who was crossing in front of her residence, told her to call 911.She complied, but did not know what to tell the 911 operator because she did not know what was happening.The operator told Mrs. McCarty that an officer was already on his way there.She said that she went outside and saw a man being held down by Ballinger, who lived across the street, and his friend.The two were screaming.The subject said that he did not know what was happening; he was riding his bike, and the two men jumped him.

Mrs. McCarty said that the brown purse around the subject's neck belonged to her, and Rick identified the computer bag.Her husband told her to look at the sliding glass door; it was open.Mrs. McCarty said that she then realized that someone had been inside the house.She stated that her daughter arrived home at 10:55 p.m.; she checked the clock.When the dog started barking, Mrs. McCarty said that she got up, went to the restroom, and went to bed.After that she began to hear the noises outside.She did not hear anything before the noises on the street.However, Mrs. McCarty explained that there was an air purifier in the bedroom that was very loud.She said that Tommy, her neighbor to the side who was an arson investigator, told her to call 911.When she went outside, she saw the red bike, the subject, and eventually her husband's computer pack.She also saw her purse around the subject's neck.Mrs. McCarty identified the defendant as the subject being held down; she stated that she did not give him authority to enter her home.Mrs. McCarty admitted that she did not see the defendant inside her home, and she saw him in possession of only her purse around his neck.Officer Karl Palmer, the crime lab technician, testified that he took the photographs on March 28, 2002, but he did not dust for fingerprints because there was no suitable surface to test for fingerprints.The glass doors were moist with dew, and inside the perpetrator picked up the computer bag and did not touch other items in the house.The victim showed Officer Palmer what had been disturbed, and there were no surfaces suitable for the lifting of fingerprints.Additionally, fingerprints are usually used to try to identify the perpetrator, but in this case the burglar had been caught right outside the house.On cross-examination he admitted that the defendant had not been caught inside the house.Defense counsel offered Officer Palmer as an expert in the collection of fingerprints, and the court so stipulated.Counsel again attempted to ask if it was possible that the perpetrator may have touched some individual item of furniture inside the McCarty residence.The court noted that the question still required speculation.Officer Palmer stated that he decided not to take fingerprints, not based on his expertise and experience, but upon the fact that the glass doors were wet and nothing was out of place inside.The officer stated that he took items from the bag in order to show the contents of the bag taken from the residence in the photograph.

Rick McCarty testified that he went to bed about 9:30 p.m. and was sleeping on the night of March 28, 2002.He said that he was sleeping in the bedroom at the front of the house.He was rudely awakened by his wife saying that someone was screaming outside.He said that he put on clothes and went outside to investigate.His neighbor, Gary, from across the street, and Gary's friend were holding down a man (with something around his neck) next to a bike and knapsack.After he was told what was happening, he recognized the knapsack as his computer bag (with a yellow tag containing his name).The thing around the man's neck was his wife's purse.Mr. McCarty identified the items from the photographs.He did not know the bicycle.He said that his computer was kept in the back room addition to the house, and his wife's purse was in that room as well.He denied giving the defendant permission to enter his house or to take those items.He identified the defendant in court.

On cross-examination Mr. McCarty admitted that he did not see the defendant inside his house or in possession of the blue knapsack.He said the bag was next to the defendant's bike on the ground.

Gary Ballinger, the neighbor across the street, testified that he worked part-time as an assistant manager for a yogurt store.On March 28, 2002(Holy...