State v. Henderson

• Decision Date: 18 August 1999
• Docket Number: No. 31,986-KA.,31,986-KA.
• Citation: 740 So.2d 240
• Parties: STATE of Louisiana, Appellee, v. Brigham HENDERSON, Appellant.
• Court: Court of Appeal of Louisiana — District of US

740 So.2d 240

STATE of Louisiana, Appellee, v. Brigham HENDERSON, Appellant.

No. 31,986-KA.

Court of Appeal of Louisiana, Second Circuit.

August 18, 1999.

COPYRIGHT MATERIAL OMITTED

Daryl Gold, Shreveport, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Donald E. Hathaway, Jr., Catherine M. Estopinal, Assistant District Attorneys, Counsel for Appellee.

Before NORRIS, PEATROSS & DREW, JJ.

PEATROSS, J.

Defendant, Brigham Henderson, was convicted of manslaughter following a jury trial on a charge of first-degree murder and was sentenced to 18 years at hard labor. On appeal, Defendant claims that the trial court erred and, therefore, that his conviction should be reversed and a judgment of acquittal entered or, alternatively, that he be granted a new trial. For the reasons stated herein, Defendant's conviction is affirmed.

FACTS

On February 3, 1996, Defendant was involved, along with three of his friends, in a drug related shooting at a private residence in Shreveport. During the nighttime hours of February 2, 1996, into the morning hours of February 3, a series of events began that resulted in the death of Chris Messer and in serious injuries to Brooke Medlin and others located in a home at 3117 Cedar Creek in Shreveport. Flenard L. Autrey, Jr., an 18-year-old black male, Brad Mabry, Michael Roberts, David Atkinson and Chad Eizel, all white males who ranged in age from 17 to 20, went to the home at 3117 Cedar Creek to buy crystal methamphetamine. The house was the known residence of Stephanie Messer, and her brother Chris was there that evening. Autrey and Atkinson entered the house, where Autrey intended to buy the drugs. Chris Messer, however, refused to sell drugs to Autrey. During the course of his refusal, Chris Messer referred to Autrey as a "nigger." Autrey, upset by the incident, left the house with Mabry and drove to Michael Roberts' residence in Springlake Subdivision in Caddo Parish where Defendant was present. Thereafter, Autrey and Defendant drove to two separate residences to pick up shotguns, one of which was owned by Defendant. After they picked up the shotguns, Autrey drove back to the residence at 3117 Cedar Creek with Roberts, Mabry and Defendant. Roberts and Mabry stayed in the car, with Mabry now driving. Autrey and Defendant went behind the house, by the kitchen door and began firing into the house. Chris Messer and Brooke Medlin, who were sitting at the kitchen table playing cards, were struck by the gunfire. After emptying their shotguns, Autrey and Defendant returned to the car, reloaded and again fired into the house. Chris Messer was fatally shot in his back. Brooke Medlin suffered a shattered femur and thumb, a chest injury and nerve damage. Other occupants of the house were also injured by the gunfire.

After his arrest, Defendant gave a postMiranda statement confessing that he fired at least two shots into the residence. Both shooters, Defendant and Autrey, as well as Roberts and Mabry, were charged with first-degree murder. Roberts and Mabry entered into a plea agreement in exchange for their testimony. As previously stated, Defendant was tried and convicted of the responsive charge of manslaughter.

Defendant initially assigned 11 trial court errors; however, by failure to brief, Defendant has voluntarily abandoned 6 of his assigned errors. State v. Thomas, 28,790 (La.App.2d Cir.10/30/96), 683 So.2d 1272; URCA Rule 2-12.4. We will address each of the remaining 5 errors in order of assignment.

DISCUSSION

Assignment of Error No. 4: Failure to produce grand jury testimony

On or about June 4, 1996, counsel for Defendant filed a Motion for Discovery of Information Necessary to a Fair Trial in which he requested that all witness statements be produced "including transcripts of grand jury proceedings." Defendant's motion stated that, "at a minimum," the trial court should review the grand jury transcript to determine if it contains any exculpatory evidence. Two participants in this crime, Michael Roberts and Brad Mabry, became State's witnesses after agreeing to a reduced charge in exchange for their testimony against Autrey and Defendant. Defendant asserts that the trial court erred by producing only four pages of Michael Roberts' grand jury testimony and by failing to produce any testimony of Brad Mabry. We disagree.

The trial began on March 31, 1997. In conjunction with the direct examination of Brad Mabry, counsel for Defendant brought to the trial court's attention, apparently by oral motion, the need for a review of the grand jury transcript to determine whether it contained exculpatory or impeachment evidence. The prosecutor emphasized to the trial court that there was no material inconsistency between the testimony of Mabry before the grand jury and on direct examination which had just been completed. The trial court and counsel for Defendant responded:

TRIAL COURT: Mr. Gold, I would say that I've had a chance now during the recess to read the transcript in question. And as you know, I even discussed two aspects with the District Attorney's office. Having considered that, the Court is of the opinion that there's nothing in the transcript that ought to be shared, there's nothing material, and that's the finding of the Court.

MR. GOLD: That's fine, Your Honor, I accept that. I mean there's no objection to that, I accept the Court's ruling.

Despite his counsel's statement, Defendant now claims that the trial court erred in not producing copies of the grand jury testimony of Brad Mabry. Based on the record before us, it is clear that counsel for Defendant waived any objection to the trial court's ruling; and, as such, it will not be considered in this appeal. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992); State v. Brown, 552 So.2d 612 (La.App.2d Cir.1989), writ denied, 558 So.2d 581 (1990); La.C.Cr.P. art. 841.

In regard to the testimony of Michael Roberts, the trial court conducted an in-camera review of his grand jury testimony and produced four pages for review by the defense prior to cross-examination. In response to the court's ruling regarding the production, counsel for Defendant stated:

MR. GOLD: And if the record would reflect that those numbered pages that were announced by the Court are the only pages that I have been provided with.

Again, no specific objection was stated by counsel for Defendant to the limited production. Since it appears that Defendant's motion was orally made at trial (as opposed to relying upon the written motion filed some ten months earlier), it is questionable whether or not counsel properly preserved an objection to the limited production of Roberts' grand jury testimony. See La.C.Cr.P. art. 841. Even assuming however, that the issue is proper for appeal, we find that Defendant's assigned error is fatally flawed in other respects.

The meetings of the grand jury are entitled to the utmost secrecy. See La.C.Cr.P. art. 434. Such secrecy is to be violated only on a showing that without access to the grand jury testimony a defendant's case would be greatly prejudiced or that an injustice would be done. State v. Trosclair, 443 So.2d 1098, 1102-03 (La. 1983), cert. dism., 468 U.S. 1205, 104 S.Ct. 3593, 82 L.Ed.2d 889 (1984). A defendant's need for the testimony must be shown "with particularity." Trosclair, supra. A general request for grand jury testimony will not satisfy the requirement of a demonstrated need, even when the alleged "need" is based upon a suspicion of perjury. Trosclair, supra. In Trosclair, the Supreme Court stated:

The court must balance the continuing need for secrecy and the particularized need for disclosure in arriving at its determination. The party seeking disclosure has the burden of proving that the need for disclosure outweighs the continuing need for secrecy. If disclosure is permitted, it must be closely confined to the limited portion of the material for which there is particularized need. In any event, disclosure is left to the sound discretion of the trial court and will not be reversed in the absence of an abuse of discretion. See Douglas Oil Company v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156, (1979).

A general claim such as that made by Trosclair that disclosure of grand jury transcripts would reveal exculpatory evidence or evidence of perjury is usually not sufficient to satisfy the requirement of a showing of particularized need. See United States v. Short, 671 F.2d 178 (6th Cir.1982).

Decisions of this court have closely followed Trosclair. See State v. Evans, 27,750 (La.App.2d Cir.2/28/96), 669 So.2d 719, writ denied, 96-0793 (La.6/28/96), 675 So.2d 1119; State v. Barker, 628 So.2d 168 (La.App. 2d Cir.1993), writ denied, 93-3194 (La.3/25/94), 635 So.2d 236.

Defendant's written motion, and presumably his counsel's oral request, were that the trial court conduct an in-camera inspection of the grand jury transcripts. That is exactly what the trial court did in this case; and, as a result, it disclosed pages of the transcript to the defense for impeachment purposes. We find that Defendant has failed to state a particularized need or factual basis that would justify the release of the entire grand jury testimony of Michael Roberts, or that calls into question the limited production of pages. Defendant has only made, like the defendants in Trosclair and Evans, a generalized claim or allegation of perjury. Furthermore, we can find no statement in the record as to how Defendant would be "greatly prejudiced" or would suffer an injustice by the trial court's failure to produce additional pages of the transcript. We find, therefore, that the trial court did not abuse its sound discretion in...