State v. Moore, No. 2009 KA 2186 (La. App. 5/7/2010)
| Decision Date | 07 May 2010 |
| Docket Number | No. 2009 KA 2186.,2009 KA 2186. |
| Parties | STATE OF LOUISIANA, v. DEREK NATHANIEL MOORE. |
| Court | Court of Appeal of Louisiana — District of US |
ON APPEAL FROM THE 19th JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA CASE NUMBER: 05-07-0341; SECTION 8 THE HONORABLE WILSON E. FIELDS, JUDGE PRESIDING.
HILLAR D. MOORE, III, District Attorney RON C. GATHE Sonia Washington Assistant District Attorneys Baton Rouge, La. Counsel for Appellee The State of Louisiana.
LIEU T. VO Clark Slidell, La. Counsel for Appellant Derek Nathaniel Moore.
Before: DOWNING, GAIDRY and McCLENDON, JJ.
Not Designated for Publication
The defendant, Derek Moore, was charged by grand jury indictment with second degree murder (count one) and attempted second degree murder (count two), violations of La. R.S. 14:30.1 and La. R.S. 14:27. The defendant entered a plea of not guilty. After a trial by jury, the defendant was found guilty as charged. On count one the defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On count two the defendant was sentenced to fifteen years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The sentences are to be served concurrently. The defendant now appeals, assigning error to the exclusion of an alibi witness, to the sufficiency of the evidence, and to the imposition of sentence immediately after the denial of post-trial motions without a waiver of the time delay. Subsequent to the State's response by brief, the defendant also filed a reply brief that has been reviewed and considered by this Court. For the following reasons, we affirm the convictions and sentences.
On or about March 16, 2007, at about 10:30 p.m., a gunman knocked on the door of a residence located at 864 North 38th Street in Baton Rouge, Louisiana and held the victim, Cathy Brumfield, at gunpoint as he entered the home. The gunman asked about money and for a person named Gilbert. The gunman then began firing his weapon. Officers of the Baton Rouge City Police Department were dispatched to the residence. Upon their arrival, the officers learned that it was the scene of the shooting of victims Kevin Lee and Ms. Brumfield. Ms. Brumfield died as a result of injuries suffered from the shooting. The defendant was identified as the shooter of both victims.
In the first assignment of error, the defendant argues that the trial court erred in excluding alibi witness testimony. The defendant contends that the defense counsel was not informed of the name of an alibi witness until the day of the trial. The defendant notes that the trial court excluded the witness pursuant to La. C.Cr.P. art 727. The defendant contends that notice was given in accordance with subsection C of the statute.1 Arguing that even if this court finds that notice was not timely, the defendant maintains exclusion of the witness was not mandatory. The defendant notes that the trial court reasoned that the defense did not show good cause for the late notice, and argues that the trial court failed to conduct a balancing test to determine if the State would suffer prejudice as a result of the alibi witness testimony. The defendant further contends that the trial court did not consider alternatives to the exclusion of the testimony and argues that the trial court violated his Sixth Amendment constitutional right to present a defense. Finally, the defendant argues that the trial court's error was not harmless, noting that the verdicts were not unanimous.
The defendant has filed a pro se brief with three assignments of error wherein he reiterates the arguments in support of counseled assignment of error number one. The defendant submits that he was denied due process and equal protection of the laws in that he was particularly deprived of his Sixth Amendment constitutional right to present a defense. The defendant contends that the proposed testimony of an alibi witness was relevant and notes that the evidence of his guilt was not overwhelming. The defendant contends that the trial court should have granted the prosecution additional discovery or inspection regarding the alibi witness testimony, and modified its previous order pursuant to La. C.Cr.P. art. 729.3 and La. C.E. art. 402.
In the course of the voir dire, the defense attorney informed the court that an answer to reciprocal motion for discovery was filed. The State informed the court that despite the State's previous request for notice of an alibi witness in reciprocal discovery months before trial, the defendant only gave such notice in the middle of the jury selection. Contending that it had not had an opportunity to investigate any information regarding the witness, the State asked the court to exclude the testimony. The defense attorney stated that the defendant had just provided the information. The trial court noted that the defendant had been arrested for the charges herein more than a year before the trial and found that if the defendant really knew of an alibi witness, he would have provided that information to his attorney long before the jury selection. The court concluded that good cause had not been shown for the delay. The defendant filed writ applications in this court and the Louisiana Supreme Court for review of the trial court's ruling and the applications were denied. State v. Moore, 08-2287 (La. 9/19/08), 992 So.2d 971; State v. Moore, 08-1925 (La. App. 1st Cir. 9/18/08) (unpublished).
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, the Louisiana Code of Evidence, or other legislation. La. C.E. art. 402. Louisiana Code of Criminal Procedure article 727 provides, in pertinent part:
A. Upon written demand of the district attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the district attorney a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.
B. Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the district attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.
C. If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under Subsection A or B, the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness.
D. Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf.
E. For good cause shown, the court may grant an exception to any of the requirements of Subsections A through D of this Section.
In evaluating whether a party has established good cause for failing to comply with notice requirements for alibi witnesses, a district court should consider (1) the amount of prejudice that resulted from the failure to disclose, (2) the reason for nondisclosure, (3) the extent to which the harm caused by nondisclosure was mitigated by subsequent events, (4) the weight of the properly admitted evidence supporting the defendant's guilt, and (5) other relevant factors rising out of the circumstances of the case. State v. Rogers, 95-1485, p. 5 (La. App. 1st Cir. 9/27/96), 681 So.2d 994, 997, writs denied, 96-2609 & 96-2626 (La. 5/1/97), 693 So.2d 749.
The Compulsory Process Clause of the Sixth Amendment may, in certain cases, be violated by the imposition of a discovery sanction that entirely excludes the testimony of a material defense witness. However, the Sixth Amendment does not create an absolute bar to the preclusion of the testimony of a surprise defense witness. Taylor v. Illinois, 484 U.S. 400, 409-10, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988). Several years after Taylor, the Supreme Court reiterated that there is no per se bar against the exclusion of testimony for failure to comply with discovery rules, in the context of the notice provisions of Michigan's rape-shield law. Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). However, the Supreme Court further explained its prior holding: Michigan v. Lucas, 500 U.S. at 152, 111 S.Ct. at 1748 (quoting Taylor, 484 U.S. at 413, 108 S.Ct. at 655).
In Toney v. Miller, 564 F. Supp.2d 577 (E.D. La. 2008), the petitioner claimed that the trial court erred in refusing to allow the testimony of two alibi witnesses, his sister and his girlfriend. The Court noted that the police had been told during the initial investigation by both petitioner's sister and his girlfriend that he could not have committed the robbery based on their knowledge of his whereabouts at the time of the crime. In addition, the petitioner's former counsel had apparently made an oral...
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