State v. Eugene Thomas.State v. Eugene Thomas.State v. Morris J. Patin.

• Decision Date: 15 July 2010
• Docket Number: Nos. 2010–KA–0528,2010–K–0303,2010–K–0529.,s. 2010–KA–0528
• Citation: 54 So.3d 1
• Parties: STATE of Louisianav.Eugene THOMAS.State of Louisianav.Eugene Thomas.State of Louisianav.Morris J. Patin.
• Court: Court of Appeal of Louisiana — District of US

54 So.3d 1

STATE of Louisiana

v.Eugene THOMAS.State of Louisiana

v.Eugene Thomas.State of Louisiana

v.Morris J. Patin.

Nos. 2010–KA–0528

2010–K–0303

2010–K–0529.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 2010.

Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.Trisha Ward, Orleans Public Defenders, New Orleans, LA, for Eugene Thomas.David W. Price, Kathryn Sheely, Mario E. Guadamud, Baton Rouge Capital Conflict Office, Baton Rouge, LA, for Morris J. Patin.(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, and Judge PAUL A. BONIN).CHARLES R. JONES, Judge.

[4 Cir. 1] This case arises out of a shooting incident which occurred at 6881 Parc Brittany Court in New Orleans, Louisiana on December 23, 2001. Three individuals are alleged to have attacked Mr. Christopher McCorry, Mr. Troy Steen and Mr. Malcolm Green. Mr. McCorry was shot twice, once in the head and once in the chest. Mr. Steen was shot five times, twice in the left arm, twice in the right arm, and once in the back. Mr. Green was shot once in the right leg. Mr. McCorry died on the scene; Mr. Steen and Mr. Green survived. ¹ Mr. Green and Mr. Steen gave statements indicating that there were three gunmen involved in the shooting.

Eugene Thomas and Morris Patin were originally indicted for the first degree murder of Mr. McCorry on February 28, 2002. This case was allotted to Section “D” of the Orleans Parish Criminal District Court, bearing case number 428–349.

On August 30, 2002, the lead detective assigned to this case received a Crimestoppers tip identifying a third shooting suspect as Eric McCormick. Shortly thereafter, the detective presented photographic lineups of Thomas, Patin, and McCormick to the surviving victims. Mr. Steen identified McCormick as the third shooter.

[4 Cir. 2] Thereafter, on October 17, 2002, an Orleans Parish Grand Jury returned a superseding true bill of indictment, charging Thomas, Patin and McCormick with first-degree murder. The State filed the superseding indictment, and thereafter entered a nolle prosequi as to the earlier case number 428–349.

Procedural History as to Eugene Thomas

Thomas, who at the time was represented by attorney Clyde Merritt, pled not guilty on October 24, 2002. During the first seven months following the October 17, 2002 indictment, Thomas represented in open court that he intended to present an alibi defense. The alibi of Thomas was that he was at the Lake Forest Plaza Mall at the time of the shootings. Thomas disclosed the names of Brandon Mitchell and Angelo Brown as his alibi witnesses.

On or about May 19, 2003, Thomas was notified by the State of its intention to try McCormick before jointly trying Thomas and Patin. Thomas and Patin were scheduled to proceed to trial on August 25, 2003.

Nevertheless, although the trial for McCormick was scheduled for July 21, 2003, the trial was continued to October 20, 2003. When the matter proceeded to trial as scheduled, the district court declared a mistrial two days later on October 22, 2003. At that time, the State notified Thomas and Patin that they would not be tried until McCormick's retrial.²

The date set for Thomas and Patin to go to trial was February 9, 2004. However, the joint trial for both did not take place as it was continued numerous times:

[4 Cir. 3] until April 26, 2004 upon joint motion;

— until June 28, 2004 on motion of Patin;

— until August 2, 2004 on motion of Patin,

— until October 25, 2004 upon motion of the State,

— until January 24, 2005 on motion of the State,

— until March 28, 2005 on joint motion,

— until June 20, 2005 on motion of Thomas,

— until September 12, 2005 on motion of Thomas.³

During this period of numerous continuances, particularly on February 22, 2005, Thomas filed a pro se motion for speedy trial in this Court, which we considered as a writ application. In response to the writ application, on March 8, 2005, this Court ordered:

Relator's writ is granted for the sole purpose of transferring his Motion for Speedy Trial for consideration prior to trial or by March 28, 2005, if trial is continued, or if it has not already done so. As proof of compliance, the district court is ordered to provide this court with a minute entry evidencing the action taken.

On June 20, 2005, the district court noted that Thomas had previously moved for a continuance, and granted a continuance on the motion of Thomas over the objection of the State.

However, Hurricane Katrina struck New Orleans and the Gulf Coast region on August 29, 2005. This event stalled court operations at the Orleans Parish Criminal District Court until operations resumed on or about January 1, 2006. ⁴

On June 13, 2006, the State filed a “set sheet” in order to resume the proceedings against Thomas and Patin, who were located by June 30, 2006, and transported back to Orleans Parish.

In the interim, on July 27, 2006, at a status conference, counsel for Patin informed the district court that he intended to withdraw as counsel of record. A [4 Cir. 4] new attorney enrolled three weeks later on August 15, 2006. Shortly thereafter, Thomas and Patin moved for a scheduling conference (which was scheduled for September 5, 2006). Trial was set for November 13, 2006. ⁵

On the scheduled trial date of November 13, 2006, the State announced readiness for trial, but counsel for Thomas (Mr. Merritt), withdrew as counsel of record, and the district court ordered the matter continued. Nearly four weeks later, on December 11, 2006, Mr. Lewis Ungelsby enrolled as counsel of record for Thomas. A pre-trial conference was scheduled for January 17, 2007, but on that date the pre-trial conference was continued until February 5, 2007, because a trial was in progress, and because of the non-appearance of Mr. Ungelsby.

At a subsequent pre-trial conference on February 5, 2007, trial was scheduled for June 25, 2007. However, on June 6, 2007, Thomas moved to continue the June 25, 2007 trial. Two weeks later, Thomas filed eight (8) applications for subpoenas duces tecum. The court set a return date of July 12, 2007, for compliance with the subpoenas.

In response to the June 6, 2007, motion to continue filed by Thomas, the district court ordered the June 25, 2007 trial date continued to November 5, 2007.

On November 5, 2007, the State announced readiness for trial, as did Thomas, but trial did not commence because counsel of record for Patin withdrew his representation. On January 7, 2008, a hearing was held to determine counsel for Patin, but the hearing was rescheduled to January 11, 2008. On January 11, 2008, Thomas filed a motion for an extension of time related to the lack of legal representation for Patin, who obtained new counsel on February 19, 2008.

[4 Cir. 5] On March 3, 2008, the district court, the State and the defendants held a scheduling conference in which all parties discussed the need to “get the case moving expeditiously”:

THE COURT: What's the status, Mr. [Assistant DA]?

MR. deBLANC: Your Honor, I've spoken with Mr. Price who was recently appointed to represent Mr. Patin in this case, who indicates that the previous attorney has not really turned over too much. Because of that, I'm going to be putting together a full packet of new Discovery disclosure, at least for them, and I will also provide it to Mr. Thomas' counsel, and make sure that they have the same thing.

Because of the potential need for further investigation by Mr. Price, and the fact that they are also coming out of Baton Rouge, we have selected three dates so we can get this case moving. The first date is April 17 [, 2008]. We ask that that be set for status hearing for discovery to make sure that all, that the state has turned over everything that it's supposed to, although it should be turned over prior to that date.

We ask that the date of May 2 [, 2008], be set for the deadline for any additional written motions to be filed in this matter, and with the intent if there is a need for any additional motions to be held that that date be set for June 9 [, 2008]. We feel that if we do this, then we will get the case moving expeditiously.

THE COURT: Everyone's in agreement with what counsel just stated?

MR. PRICE: Yes, sir. We've worked out those dates in agreement.

[4 Cir. 6] MR. UNGELSBY: Yes, sir.

THE COURT: So ordered.

A status hearing was held on April 17, 2008. Subsequent to that date, on May 2, 2008, Patin filed several motions. The scheduled trial date of June 9, 2008, was continued because of another trial in progress. The motions on behalf of Patin were not resolved on July 22, 2008, August 19, 2008, nor November 3, 2008. However, on November 3, 2008, trial was scheduled for April 20, 2009.

Prior to the scheduled trial date of April 20, 2009, Patin again filed motions on March 10, 2009, and March 26, 2009. The scheduled date of April 20, 2009, was converted to a status conference. At that time, the bill of indictment was amended from first-degree murder to second-degree murder, and trial was scheduled for July 27, 2009.

However, eighteen days prior to the July 27, 2009 trial date, counsel for Thomas, Mr. Unglesby, withdrew as counsel of record. Then, three days prior to the July 27, 2009 trial date, new counsel for Thomas filed a motion to sever defendants. Patin followed suit and filed a motion to sever on July 31, 2009. The severance was granted several months later.⁶

After the July 27, 2009 date, several status hearings were held. Thomas filed a motion to quash the indictment on September 4, 2009, four days after Patin filed a separate motion to quash. After a hearing on the motion to quash, the district court denied the motion to quash filed...