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Date: 08-04-2020

Case Style:

STATE OF LOUISIANA Vs. CASSETTI DEWAYNE BROWN, JR.

Case Number: KA -0019-0682

Judge: ULYSSES GENE THIBODEAUX

Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Plaintiff's Attorney: Asa Allen Skinner
District Attorney – 30th Judicial District
Terry W. Lambright
First Assistant District Attorney

Defendant's Attorney:

Call 918-582-6422 for free help finding a great criminal defense lawyer.

Description:













On September 6, 2017, Defendant, Cassetti1 Dewayne Brown, Jr., was
charged by bill of information with possession with the intent to distribute a schedule
II, controlled dangerous substance (CDS II) (cocaine), in violation of La.R.S.
40:967(A)(1) and (B)(4)(b)2
(count one); possession of CDS II (methamphetamine),
in violation of La.R.S. 40:967(C) (count two); illegal carrying of weapons in the
presence of CDS, in violation of La.R.S. 14:95(E) (count three); and possession of
a firearm by a convicted felon, in violation of La.R.S. 14:95.1 (count four). All of
these charges had an offense date of June 9, 2017. On January 3, 2018, the State
filed an amended bill of information, adding four new charges, all with October 31,
2017 offense dates: possession with intent to distribute CDS II (hydrocodone and
oxycodone), in violation of La.R.S. 40:967(A)(1) and (B)(1)(a) (count five);
possession with intent to distribute CDS II (cocaine) in violation of La.R.S.
40:967(A)(1) and (B)(1)(a) (count six); possession with intent to distribute CDS I
(synthetic cannabinoids), in violation of La.R.S. 40:966(A)(1) and (B)(2)(a) (count
seven); and possession with intent to distribute CDS I (marijuana), in violation of
La.R.S. 40:966(A)(1) and (B)(2)(a) (count eight).
Mr. Brown proceeded to trial on November 13, 2018. On November
16, 2018, the jury found Mr. Brown guilty as charged on counts one, two, three, four,
but not guilty as to counts five and eight. The jury also convicted Mr. Brown in
1Both bills of information spell Mr. Brown’s first name as “Cassetti”; however, Mr.
Brown’s name, based upon his pro se brief, is actually spelled “Casetti.” As it is the practice of
this court to use the name on the bill of information, we will refer to Mr. Brown as “Cassetti”
outside of quotations.
2Louisiana Revised Statutes 40:967 was amended by 2017 La. Acts No. 281, § 2, effective
July 1, 2017. For clarity and simplicity, we will refer to the relevant statutory provisions as they
are cited in the amended bill of information.
2
counts six and seven by ten-to-two and eleven-to-one verdicts, respectively. After
denying Mr. Brown’s motion for new trial and adjudicating Mr. Brown a third felony
offender with respect to count four and a fourth offender with respect to the
remaining charges, the trial court, on May 8, 2019, sentenced Mr. Brown to an
aggregate sentence of one-hundred sixty-five years at hard labor without benefit of
probation, parole, or suspension of sentence by ordering the sentences for all counts,
except for count seven, to run consecutively. Mr. Brown, thereafter, filed a motion
to reconsider sentence, which the trial court denied without reasons.
For the following reasons, we affirm Mr. Brown’s convictions in counts
one through four, but remand this matter to the trial court for resentencing with
concurrent sentences on counts one through four, with the length of the sentences to
be in accordance with the enhanced sentencing provisions of the Habitual Offender
Law, La.R.S. 15:529.1. Additionally, in light of the Supreme Court’s recent holding
in Ramos v. Louisiana, 590 U.S. __, 140 S.Ct. 1390 (2020),3 we vacate Mr. Brown’s
convictions and sentences and remand for a new trial on counts six and seven.
I.
ISSUES
On original and supplemental brief, Mr. Brown through counsel raises
seven assignments of error for this court’s review:
1. the trial court erred in denying the Motion for New
Trial filed on behalf of Mr. Brown.
2. the trial court erred in applying the incorrect version
of La.R.S. 15:529.1 as to the applicable cleansing
period, in limiting the defense’s cross-examination
during the habitual offender hearing, and in its
3This opinion can be found at 2020 WL 1906545. Note, in this plurality opinion, the
concurrences are published with their own sequence of page numbers.
3
ruling that the State had sufficiently proven that the
five-year cleansing period had not been met.
3. the trial court erred in permitting the State to
introduce the statement made by Appellant without
first showing he had been properly advised of his
Miranda rights.
4. the sentences imposed by the trial court violate the
Eighth Amendment of the Constitution of the
United States and La. Const. Art. I, § 20, as they are
nothing more than cruel and unusual punishment
and, thus, excessive, especially in light of the fact
the trial court ordered that five of the sentences be
served consecutively to each other.
5. the verdicts returned in this case on counts six and
seven must be set aside as they were not returned by
a unanimous jury, in violation of the Equal
Protection Clause of the Fourteenth Amendment of
the Constitution of the United States.
6. the verdicts returned in this case on counts six and
seven must be set aside as they were not returned by
a unanimous jury, in violation of the right to trial by
jury set forth in the Sixth Amendment of the
Constitution of the United States as interpreted by
the courts.
7. trial counsel rendered assistance below that
guaranteed by the Sixth Amendment and Appellant
was prejudiced as a result of counsel’s deficient
performance.
Mr. Brown also raises two pro se assignments of error:
1. the trial court erred by denying a hearing on Mr.
Brown’s motion to suppress.
2. the affidavits for search warrants were insufficient
and defective.
II.
FACTS AND PROCEDURAL HISTORY
At sentencing, the trial court summarized the relevant facts as follows:
4
According to the offense reports, on June the 8th, 2017, a
search warrant was obtained by the Vernon Parish
Narcotics Task Force, based on the Task Force making
three controlled buys of crack cocaine from 1729 Nona
Street, Leesville, Louisiana during the months of April
through June 2017. The controlled buys were made from
a known drug dealer, Casetti Brown, Jr. On June the 9th,
2017, agents executed the warrant and made contact with
Brown at the residence on Nona Street. During the
investigation, search, and questioning of Mr. Brown, crack
cocaine and weapons were found inside the residence. Mr.
Brown was charged with possession of Schedule I with
intent to distribute, possession of Schedule II
methamphetamine with intent to distribute, possession of
Schedule II cocaine with intent to distribute, possession of
a firearm by a convicted felon, and possession of a firearm
while in possession of a controlled dangerous substance.
On October the 31st, 2017, another search warrant was
obtained due to additional criminal activity supported by
controlled purchases of illegal narcotics from Casetti
Brown, Jr. at 1729 Nona Street, Leesville, Louisiana. Mr.
Brown had bonded out on the earlier arrest and continued
his criminal activity. Contact was made by Vernon Parish
Narcotics Task Force, uh, and Casetti Brown, Jr., Jerry
Brown, and Steven Brown were secured without incident.
During the search, a substance was found that was field
tested and was positive for cocaine. Another substance
was found that was tested and was positive for
methamphetamine. Another firearm was found in the
residence and approximately 90 red-in-color seeds or
plants were found which is a type of a poisonous plant.
By bill of information, dated September 6, 2017, and amended bill of
information, dated January 3, 2018, the State charged Mr. Brown with counts one
through four, with an offense date of June 9, 2017, and counts five through eight,
with an offense date of October 31, 2017, respectively. Thereafter, Mr. Brown, on
July 25, 2018, filed a motion to suppress evidence, seeking suppression of all
evidence seized during searches of his residence along with all statements made prior
to the advisement of his Miranda rights. The motion alleged the affidavits in support
of the search warrants were insufficient to establish probable cause, thus rendering
the searches warrantless and without consent. On August 3, 2018, the State filed an
5
objection to the motion, alleging it was untimely filed. Following a contradictory
hearing on August 8, 2018, the trial court granted the State’s objection and ruled the
motion to suppress was untimely under La.Code Crim.P. art. 521.
A jury found Mr. Brown guilty as charged on counts one, two, three,
four, six, and seven, and not guilty on counts five and eight on November 16, 2018.
While the verdicts on counts one through four were unanimous, Mr. Brown was
convicted on count six by a ten-to-two verdict and on count seven by an eleven-toone verdict. On January 10, 2019, Mr. Brown filed a “Motion and Order for New
Trial,” alleging his convictions were contrary to the law and evidence. Specifically,
Mr. Brown challenged: (1) the trial court’s November 9, 2018 denial of defense
counsel’s motion to withdraw; (2) the trial court’s allowance at trial of the evidence
addressed in the motion to suppress; (3) the trial court’s denial of Mr. Brown’s
objections to evidence being introduced without the showing of a complete and
uninterrupted chain of custody; (4) the trial court’s allowance of Detective Noel
Yates to be designated as a drug and narcotics expert; and (5) the trial court’s
allowance of the State to display a large picture of the fictional character Tony
Montana, aka “Scarface,” sitting at a table full of cocaine during voir dire.
Also, on January 10, 2019, the State filed a “Habitual Offender Bill of
Information,” charging Mr. Brown with being a third habitual offender with regard
to his conviction for possession of a weapon by a convicted felon and as a fourth
habitual offender for all other charges. On February 22, 2019, Mr. Brown filed an
amended motion for new trial, adding two new rulings he alleged were erroneous:
(1) the trial court’s denial of a hearing on Mr. Brown’s motion to suppress, and (2)
the trial judge’s failure to recuse himself based upon his participation on behalf of
the State in one of Mr. Brown’s prior cases.
6
A hearing was held on both Mr. Brown’s motion for new trial and the
habitual offender adjudication on February 27, 2019. The trial court denied the
motion for new trial and took the habitual offender adjudication under advisement.
On March 26, 2019, the trial court issued a written ruling, which adjudicated Mr.
Brown a third felony offender with respect to the possession of a firearm by a
convicted felon charge and a fourth offender with respect to the remaining charges.
On May 8, 2019, the trial court sentenced Mr. Brown as follows: count
one, thirty-five years at hard labor without the benefit of probation, parole, or
suspension of sentence; count two, twenty-five years at hard labor without the
benefit of probation, parole, or suspension of sentence; count three, thirty-five years
at hard labor without the benefit of probation, parole, or suspension of sentence;
count four, thirty-five years at hard labor without the benefit of probation, parole, or
suspension of sentence; count six, thirty-five years at hard labor without the benefit
of probation, parole, or suspension of sentence; and count seven, six months in the
parish jail. The first five sentences were ordered to run consecutively to one another
with the sentence for count seven to run concurrently to count six. On June 4, 2018,
Mr. Brown filed a motion to reconsider sentence, asserting his sentence was
excessive due to the consecutive running of the individual sentences and for failure
by the trial court to duly consider Mr. Brown’s age. The trial court denied the motion
without reasons on June 10, 2018.
Mr. Brown now appeals his convictions and sentences.
7
III.
LAW AND DISCUSSION
By counsel, Mr. Brown raises seven assignments of error. Mr. Brown
also raises two pro se assignments of error. We will discuss and address each
assignment of error in order of merit.
Non-unanimous Jury Verdicts
In his supplemental brief, Mr. Brown raises three counseled
assignments of error concerning the non-unanimous jury verdicts returned in counts
six and seven. Specifically, he argues that the non-unanimous verdicts violate his
right to Equal Protection under the Fourteenth Amendment of the United States
Constitution and his right to trial by jury under the Sixth Amendment of the United
States Constitution. He further contends that trial counsel was ineffective for not
contesting the validity of the non-unanimous jury verdicts either prior to or during
trial.
Recently, in Ramos, the Supreme Court reversed the ruling of the fourth
circuit in State v. Ramos, 16-1199 (La.App. 4 Cir. 11/2/17), 231 So.3d 44, writs
denied, 17-1177 (La. 10/15/18), 253 So.3d 1300, and 17-2133 (La. 6/15/18), 257
So.3d 679, upholding a non-unanimous jury verdict that convicted the defendant of
second degree murder. Although the concurring justices did not join in all parts of
the majority opinion, the holding in Ramos unambiguously determined that nonunanimous verdicts are not permissible under the Sixth Amendment to the United
States Constitution and that said prohibition applies to the states through the
Fourteenth Amendment, overruling prior jurisprudence from the Louisiana Supreme
Court upholding such verdicts in criminal cases. Ramos further recognizes, while
8
not explicitly stating, that its ruling will apply to cases pending on direct review in
keeping with our jurisprudence in State v. Ruiz, 06-1755 (La. 4/11/07), 955 So.2d
81, while Justice Kavanaugh, in his concurrence, slip op., at 15, explicitly states:
Only Louisiana and Oregon employ non-unanimous juries
in criminal cases. To be sure, in those two States, the
Court’s decision today will invalidate some nonunanimous convictions where the issue is preserved and
the case is still on direct review. But that consequence
almost always ensues when a criminal-procedure
precedent that favors the government is overruled.
As Mr. Brown’s case is clearly still in the process of direct review, we
find that Ramos is binding and that, pursuant to its holding, Mr. Brown’s convictions
on counts six and seven, returned by ten-to-two and eleven-to-one verdicts,
respectively, are unconstitutional. Accordingly, we vacate Mr. Brown’s convictions
and sentences and remand for a new trial on counts six and seven.4
Unconstitutional Consecutive Sentences
In his fourth counseled assignment of error, Mr. Brown contends that
the trial court’s imposition of consecutive sentences, totaling one-hundred sixty-five
years at hard labor without benefit of probation, parole, or suspension of sentence,
was cruel and unusual punishment and that, consequently, his sentences are
unconstitutional. Notably, this is the same argument presented in Mr. Brown’s
motion to reconsider sentence and is, therefore, properly before this court. Mr.
Brown points out that of his six convictions, five were enhanced under the habitual
offender law before being run consecutive and that four of those convictions arise
from the same June 9, 2017 arrest.
4Because he has not been deprived of benefitting from the ruling in Ramos, Mr. Brown’s
ineffective assistance of counsel claim is now moot, and we pretermit further discussion of it.
9
Louisiana Code of Criminal Procedure Article 883 (emphasis added)
sets forth the general rule for concurrent versus consecutive sentences:
If the defendant is convicted of two or more
offenses based on the same act or transaction, or
constituting parts of a common scheme or plan, the terms
of imprisonment shall be served concurrently unless the
court expressly directs that some or all be served
consecutively. Other sentences of imprisonment shall be
served consecutively unless the court expressly directs that
some or all of them be served concurrently. In the case of
the concurrent sentence, the judge shall specify, and the
court minutes shall reflect, the date from which the
sentences are to run concurrently.
Mr. Brown argues the trial court’s failure to find that he posed “an
unusual risk to the public safety warranting more than the thirty-five years” imposed
on count one renders his consecutive sentences, at least for counts one through four,
excessive. He bases this contention on State v. Sherer, 437 So.2d 276, 277
(La.1983), which found:
Because the function of the consecutive sentence
should be similar to the sentence imposed on habitual or
dangerous offenders, sentences for crimes arising from a
single course of conduct should be concurrent rather than
consecutive, absent a showing that the offender poses an
unusual risk to the safety of the public. See State v.
Franks, 373 So.2d 1307 (La.1979); State v. Cox, 369
So.2d 118 (La.1979). Cf. La.C.Cr.P. art. 883. We cannot
presume that the sentencing judge viewed the defendant as
an unusual risk to the safety of the public because he did
not so state. Instead, the judge expressed his belief that
the defendant had become virtually rehabilitated and
should be released on parole at the earliest possible time.
For these reasons, the imposition of consecutive rather
than concurrent sentences totaling 12 years at hard labor
upon a defendant deemed parole-eligible by the sentencing
judge for crimes of criminal negligence, rather than
intentional offenses, arising from a single course of
conduct, are unexplained by the judge’s statements and
unillumined by this problematic record.
10
The trial court, during sentencing, stated several reasons for why he felt
Mr. Brown’s sentences should be consecutive, rather than concurrent: (1) Mr.
Brown had a lengthy criminal history of firearm and drug charges; (2) while on bond
for drug charges arising out of the June 9, 2017 arrest, Mr. Brown continued to sell
drugs; (3) despite having no work history, Mr. Brown was able to post bond of over
$225,000 in roughly a week; (4) the volume of drugs and weapons seized from Mr.
Brown’s residence; and (5) Mr. Brown’s residence contained multiple electronic
scales and “every type of drug paraphernalia needed to get people high.” Further,
the trial court noted that Mr. Brown, based upon his convictions, had been selling
illegal narcotics for over two decades and was “the true definition of a drug dealer.”
The trial court observed that even after conviction and serving time, Mr. Brown
started drug dealing again upon his release. The trial judge also stated his belief that
Mr. Brown had directed counsel to ask questions designed to try and figure out the
identities of the confidential informants whose purchases led to the two search
warrants.
Mr. Brown asserts that these reasons “might justify consecutive
sentences for each of the two offense dates, but not for the charges arising from the
same search.” Because we have vacated the sentences for counts six and seven, the
sentences remaining before us all arise from the same offense date and same course
of conduct. Running these four sentences consecutively leaves Mr. Brown with a
one-hundred-thirty-year sentence.
As noted in Sherer, consecutive sentences are similar in nature to a
habitual offender enhancement. Consequently, the imposition of multiple
consecutive, habitual offender enhanced sentences is suspect without some evidence
the defendant is an undue risk to the public. Though the trial judge believed that Mr.
11
Brown did pose such a risk, we find, however, that the resulting one-hundred-thirtyyear sentence herein is not supported by the evidence presented at sentencing.
Moreover, the sentences were already enhanced under the law. See La.R.S.
15:529.1. The trial court’s reasons do not justify consecutive sentences on four
crimes that all occurred simultaneously.
Additionally, the recently enacted Louisiana’s Justice Reinvestment
Reforms of 2017 implore us to seriously consider Louisiana’s history of long-term
incarceration. See 2017 La. Acts Nos. 258, 260, 261, 262, 264, 265, 277, 280, 281,
and 282. In keeping therewith, we find the imposition of concurrent rather than
consecutive sentences for crimes arising out of the same conduct would better serve
the policy behind the Justice Reinvestment Initiative of reducing sentences for
certain drug offenses as well as habitual offender penalties. See 2017 La. Acts Nos.
281 and 282.
Accordingly, we remand this matter to the trial court for resentencing
with concurrent sentences on counts one through four, with the length of the
sentences to be in accordance with the enhanced sentencing provisions of the
Habitual Offender Law, La.R.S. 15:529.1.
Denial of New Trial Motion
In his first counseled assignment of error, Mr. Brown challenges the
trial court’s denial of his motion for new trial. His “Motion and Order for New Trial”
and the subsequently filed amended motion for new trial averred that the verdict was
contrary to the law and evidence and also that the trial court erred in several rulings.
12
This court, in State v. Pontiff, 14-1049, pp. 16-17 (La.App. 3 Cir.
5/6/15), 166 So.3d 1120, 1132, writ denied, 15-1107 (La. 10/28/16), 209 So.3d 94,
addressed the standard of review applicable to motions for new trial:
[T]he following standard must be adhered to when an
appellate court reviews a motion for new trial:
The denial of a motion for a new trial is not
subject to appellate or supervisory review
except for error of law. La.Code Crim.P. art.
858. The decision on a motion for new trial
rests within the sound discretion of the trial
judge. We will not disturb this ruling on
appeal absent a clear showing of abuse. The
merits of such a motion must be viewed with
extreme caution in the interest of preserving
the finality of judgments. Generally, a
motion for new trial will be denied unless
injustice has been done. See La.Code
Crim.P. art. 851; State v. Home [Horne ],
28,327 (La.App.2d Cir. 8/21/96), 679 So.2d
953, 956, writ denied, 96–2345 (La.2/21/97),
688 So.2d 521.
State v. Austin, 11-2150, p. 7 (La.App. 1 Cir. 6/8/12), 2012
WL 2061531 (unpublished opinion), writ denied, 12-1595
(La.2/8/13), 108 So.3d 77.
Louisiana Code of Criminal Procedure Article 851 enumerates the
grounds for the mandatory granting of a motion for new trial, providing:
A. The motion for a new trial is based on the
supposition that injustice has been done the defendant,
and, unless such is shown to have been the case the motion
shall be denied, no matter upon what allegations it is
grounded.
B. The court, on motion of the defendant, shall
grant a new trial whenever any of the following occur:
(1) The verdict is contrary to the law
and the evidence.
(2) The court’s ruling on a written
motion, or an objection made during the
proceedings, shows prejudicial error.
13
(3) New and material evidence that,
notwithstanding the exercise of reasonable
diligence by the defendant, was not
discovered before or during the trial, is
available, and if the evidence had been
introduced at the trial it would probably have
changed the verdict or judgment of guilty.
(4) The defendant has discovered,
since the verdict or judgment of guilty, a
prejudicial error or defect in the proceedings
that, notwithstanding the exercise of
reasonable diligence by the defendant, was
not discovered before the verdict or
judgment.
(5) The court is of the opinion that the
ends of justice would be served by the
granting of a new trial, although the
defendant may not be entitled to a new trial
as a matter of strict legal right.
(6) The defendant is a victim of human
trafficking or trafficking of children for
sexual purposes and the acts for which the
defendant was convicted were committed by
the defendant as a direct result of being a
victim of the trafficking activity.
Initially, the trial court noted “that Mr. Brown was convicted after a
jury trial and the court is not of the opinion that injustice was done to the defendant.”
The trial court then proceeded to discuss the grounds for a new trial listed in La.Code
Crim.P. art. 851(B), specifically finding the verdict was not “contrary to the law and
evidence.” Turning now to the grounds alleged in Mr. Brown’s amended motion for
new trial, namely the alleged errors in numerous trial court rulings, we address each
briefed issue separately.5
5Appellate counsel failed to brief three of the alleged errors from the motions for new trial:
(1) denial of counsel’s objections related to chain of custody; (2) acceptance of Detective Noel
Yates as an expert; and (3) failure to disclose involvement in prior prosecution. As such, we will
consider these claims abandoned and pretermit discussion of same. See Uniform Rules—Courts
of Appeal, Rule 2-12.4(B)(4).
14
Denial of Counsel’s Motion to Withdraw
On November 5, 2018, trial counsel, Don W. Martin, filed a “Motion
to Withdraw,” alleging a conflict of interest based upon Mr. Brown’s filing of a
complaint against Mr. Martin with the Louisiana Attorney Disciplinary Board and
Mr. Brown’s written accusation of malpractice against counsel. The motion was
denied, without hearing, on November 9, 2018. As noted above, Mr. Brown’s trial
commenced on November 13, 2018. Mr. Brown contends “[c]ursory denial was an
abuse of discretion.”
Our supreme court has long acknowledged that while an accused has
the constitutional right to counsel of his choosing, the right is
one which cannot be manipulated to obstruct the orderly
procedure in our courts and which cannot be used to
interfere with the fair administration of justice. State v.
Anthony, 347 So.2d 483 (La.1977); State v. Frezal, 278
So.2d 64 (La.1973); State v. St. Amand, 274 So.2d 179
(La.1973). The right of defendant to counsel of his choice
must be exercised at a reasonable time, in a reasonable
manner, and at an appropriate stage within the procedural
framework of the criminal justice system of which it is a
part. State v. Dickerson, 353 So.2d 262 (La.1977); State
v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand,
supra. Once the day of trial arrives, the question of
substitution of counsel rests largely within the discretion
of the trial judge.
State v. Lee, 364 So.2d 1024, 1028 (La.1978). And a reviewing court will not disturb
the trial court’s ruling absent a clear showing of abuse of discretion. State v.
Johnson, 389 So.2d 1302 (La.1980).
The State asserts “there was no conflict between the defendant and his
attorney on display at any point during the trial.” Mr. Brown points out that the State
“was not privy to the actual discussions between” himself and trial counsel before
or during trial. While we agree with Mr. Brown’s statement, we acknowledge the
15
language of Pontiff, 166 So.3d at 1132, noting that “[g]enerally, a motion for new
trial will be denied unless injustice has been done.” This language places the burden
on Mr. Brown to prove he was prejudiced by the trial court’s denial of Mr. Martin’s
motion to withdraw.
Although Mr. Brown argues “[t]here was also no evidence that the
[m]otion was filed to manipulate the system or that Appellant was being recalcitrant
or contentious with counsel without cause[,]” there is also no evidence to the
contrary, aside from counsel’s assertion in said motion that it was not filed to delay
proceedings. As noted by the State, trial counsel did little at the motion for new trial
hearing beyond reiterating the grounds of the written motion. Accordingly, we
cannot say an injustice was done to Mr. Brown when the court denied Mr. Martin’s
motion to withdraw. As such, we find the trial court did not abuse its discretion in
denying the motion for new trial on this ground.
Admission of Evidence Obtained by Search Warrants
As will be discussed below, Mr. Brown’s motion to suppress, filed on
July 25, 2018, was denied by the trial court as untimely under La.Code Crim.P. art.
521, which states:
A. Pretrial motions shall be made or filed within
fifteen days after arraignment, unless a different time is
provided by law or fixed by the court at arraignment upon
a showing of good cause why fifteen days is inadequate.
B. Upon written motion at any time and a showing
of good cause, the court shall allow additional time to file
pretrial motions.
C. If by pretrial motion the state or the defendant
requests discovery or disclosure of evidence favorable to
the defendant, then the court shall fix a time by which the
state or the defendant shall respond to the motion.
16
On its face, the trial court’s ruling that the motion was untimely is
correct. In light of the denial, the merit of the motion was not addressed during a
pre-trial hearing. However, during trial, defense counsel objected to the introduction
of the evidence on the same grounds upon which the motion was based. Counsel
argued that because the affidavits in support of the search warrants executed on June
9 and October 31, 2017, were insufficient to establish probable cause, any evidence
was seized in violation of Mr. Brown’s Fourth Amendment rights. Additionally, it
was contended that Mr. Brown’s statement, given to law enforcement during the
execution of the June 9, 2017 warrant, was obtained without Mr. Brown being
apprised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602
(1966). The trial court noted Mr. Brown’s continuing objection to the introduction
of any evidence or testimony resulting from the execution of the above-referenced
search warrants. Following the State’s final witness, the trial court explicitly stated
he found the affidavits supporting the June 9, 2017 and October 31, 2017 warrants
established probable cause.
Under La.Code Crim.P. art. 703(D), the burden of proof on a motion to
suppress is upon the defendant unless there is a warrantless search. Here, the
searches at issue were pursuant to warrants; thus, Mr. Brown bears the burden of
proving the warrants were not supported by affidavits, which established probable
cause to issue said warrants. Noting Mr. Brown previously had a federal conviction
for possession with intent to distribute twenty-eight grams or more of crack cocaine
overturned based upon an invalid affidavit for a search warrant, we recognize the
following section of that ruling:
Because a search warrant had been procured, we engage
in a two-part test to review the district court’s decision.
See United States v. Rojas Alvarez, 451 F.3d 320, 329 (5th
17
Cir.2006). “First, [we] determine [ ] whether the goodfaith exception to the exclusionary rule applies; if it does
not, [we] must ascertain whether the warrant was
supported by probable cause.” Id. at 329-30 (quoting
United States v. Gibbs, 421 F.3d 352, 355 (5th Cir.2005)).
For the purpose of the good-faith exception, we review the
district court’s evaluation of the officers’ objective
reasonableness de novo. United States v. Payne, 341 F.3d
393, 399 (5th Cir.2003).
The Fourth Amendment exclusionary rule does not
apply “when an officer acting with objective good faith
has obtained a search warrant from a judge or magistrate
and acted within its scope.” United States v. Leon, 468
U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Under this good-faith exception, “evidence obtained by
law enforcement officials acting in objectively reasonable
good-faith reliance upon a search warrant is admissible in
the prosecution’s case-in-chief, even though the affidavit
on which the warrant was based was insufficient to
establish probable cause.” United States v. Shugart, 117
F.3d 838, 843 (5th Cir.1997) (quoting United States v.
Craig, 861 F.2d 818, 821 (5th Cir.1988)). We confine our
good-faith inquiry to “the objectively ascertainable
question whether a reasonably well trained officer would
have known that the search was illegal despite the
magistrate’s authorization.” Leon, 468 U.S. at 922 n. 23,
104 S.Ct. 3405. The good-faith exception does not apply,
and the officer may not merely rely on the magistrate
judge’s determination of probable cause, when “the officer
[does not have] reasonable grounds for believing that the
warrant was properly issued.” Id. at 922–23, 104 S.Ct.
3405. The exception therefore does not apply, and
suppression is the appropriate remedy, where: (1) the
magistrate or judge who issued the warrant “was misled
by information in an affidavit that the affiant knew was
false or would have known was false except for his
reckless disregard of the truth”; (2) “the issuing magistrate
wholly abandoned his judicial role”; (3) the officer relied
on an affidavit “so lacking in indicia of probable cause as
to render official belief in its existence entirely
unreasonable”; or (4) the warrant is “so facially
deficient—i.e., in failing to particularize the place to be
searched or the things to be seized—that the executing
officers cannot reasonably presume it to be valid.” Id. at
923, 104 S.Ct. 3405(citations omitted) (internal quotation
marks omitted); accord United States v. Mays, 466 F.3d
335, 343 (5th Cir.2006).
18
U.S. v. Brown, 567 F.App’x. 272, 280-81 (5th Cir. 2014).6
In excluding the evidence obtained from searching Mr. Brown’s
residence in his federal conviction, the Fifth Circuit found the search fell into the
third category discussed in Leon. Specifically, the court found the affidavit (1) failed
to indicate how much cocaine was seized during a traffic stop the prior night, (2)
referenced marijuana found in the backseat of a police car but failed to note it was
by Mr. Brown’s passenger, not Mr. Brown who had been well-searched prior to
arrest, and (3) incorrectly stated Mr. Brown was on parole for drug charges when he
was on parole for a weapons-related offense. The Brown court also noted the
affidavit provided no details regarding the reliability of the informant who gave
information during a four-month investigation and failed to explain how the
packaging of the drugs found during the traffic stop was consistent with Mr. Brown’s
described method or if the method was unique. Finally, the court found the affidavit
failed to establish any connection between Mr. Brown’s residence and the drugtrafficking investigation.
To review the trial court’s decision herein, this court must now apply
the two-part test recited above. In the first step, we need to determine whether the
good faith exception applies in the instant case. If it does, we have no need to
determine whether the affidavits do, in fact, establish probable cause. See Brown,
567 F.App’x. 272. Without replicating the entirety of the affidavits, which appellate
counsel has done in brief, we find the affidavits included sufficient indicia of
probable cause and were not so deficient that the executing officers could not have
presumed validity. Additionally, there is no claim that the affiants lied or that the
6This opinion may be found at 2014 WL 1877934.
19
magistrates wholly abandoned their judicial roles. Accordingly, in light of Brown
and Leon, 468 U.S. 897, cited extensively therein, we find that the good faith
exception would apply, and Mr. Brown could not have succeeded in meeting his
burden of proving the evidence should have been suppressed.
Unlike the affidavit in question in Brown, the affidavit filed by
Detective Misti Bryant Martin of the Vernon Parish Narcotics Task Force (VPNTF),
which led to the June 9, 2017 warrant, specifically noted that a confidential
informant who had previously provided accurate information that helped lead to the
arrest of five drug dealers informed the VPNTF that Mr. Brown was selling illegal
narcotics from his residence, identified as 1729 Nona Street, Leesville, LA, 71446.
The affidavit (1) noted three separate crack cocaine purchases had been made at the
home, one of which had been made in the forty-eight hours preceding the affidavit;
(2) provided the exact address; (3) specified that drug purchases had been made at
said address, and (4) stated Mr. Brown had retrieved the drugs while at the residence.
It follows, therefore, that the executing officers would have had “reasonable grounds
for believing that the warrant was properly issued.” Leon, 468 U.S. at 923.
The affidavit in support of the October 31, 2017 warrant, produced by
Detective Noel Yates, indicated that “a confidential informant that has assisted the
VPNTF for many years in the Vernon Parish area in various narcotics related cases”
had informed the task force that Mr. Brown’s residence was still seeing high traffic,
which was “consistent with narcotics activity from [Detective Yates’s] training and
experience.” It also stated that the task force had conducted four controlled buys of
Schedule II drugs from Mr. Brown during the months of September and October
2017, with the most recent purchase being within forty-eight hours of the affidavit.
As noted in the affidavit, this was the same person selling illegal narcotics from the
20
same address where drugs and firearms were recovered pursuant to the June warrant.
Again, we cannot say that executing officers would have lacked “reasonable grounds
for believing that the warrant was properly issued.” Id. Accordingly, we find this
argument lacks merit. For these same reasons, we likewise find no merit in Mr.
Brown’s second pro se assignment of error, in which Mr. Brown argues that the trial
court should have ruled in his favor on his motion to suppress.
Publication of a Picture of Tony Montana from Scarface
Mr. Brown contends the trial court erred in allowing the State to display
a photo of fictional drug kingpin Tony Montana, Al Pacino’s character in the 1983
film Scarface, during voir dire. At the hearing on the motions for new trial, defense
counsel stated the following regarding this alleged error:
And then we had the photograph of Al Pacino as
“Scarface,” that was shown once. And the second time it
was shown I felt like that was overkill, prejudicial to my
client equating him to a -- to that photograph. And,
whereas the first time it was shown it was more or less in
the context of explaining to the jurors, during voir dire,
their --some of the points that the State intended to go over
and it wasn’t zeroed in on my client specifically at that
point. So, I -- the first time I didn’t object to it, but the
second time I felt like that was prejudicial.
The State responded:
Uh, with respect to the repeated publishing of the photo of
Al Pacino as “Scarface,” that was part of the State’s voir
dire. It was put up to -- to -- for the purpose of showing
that you -- we have no idea what drug dealers look like. It
was never pointed at Casetti Brown. And any intimation
that, that was urged by the State or said by the State or the
intent of the State is completely wrong. When Mr. Don
Martin did object to that, it was taken down. And he didn’t
object to it during its first, uh, period of time while it’s up.
I think his argument bears that out. And, so, he got the
relief that he asked for when he asked for it and the basis
that he’s seeking the relief on is -- is not correct. The State
did not point at Casetti Brown and say, “He’s Scarface, Al
21
Pacino, and he’s a horrible person.” We didn’t say that at
all. The point of it was to use something culturally
significant to people from the movies as a basis to explain
that people from all walks of life, uh, commit these types
of crimes and somebody’s appearance is not something
that you can usually use in order to decide these cases.
And on that basis, I don’t think it’s prejudicial at all that it
was shown to the jury.
During the early stages of voir dire, the State used the photograph as an
introduction to a discussion of what it takes for possession to include intent to
distribute. There was no objection made to the picture during the first panel of voir
dire. During the second panel of potential jurors, the State again put up the picture,
while discussing the definitions of the distribution crimes at issue in the case. At
that point, defense counsel objected on the ground that the picture being used again
was prejudicial and asked that the photograph be taken down and that the jury be
instructed to disregard the photograph. The trial court, noting there was no objection
to the use of the photograph during the first day of voir dire, overruled the objection.
Although it cannot be determined from the transcript of voir dire, the State contended
at the motion for new trial that the picture was taken down when defense counsel
objected. There is no evidence to contradict this assertion.
Under La.Code Crim.P. art. 786, the scope of voir dire “shall be within
the discretion of the court.” As the supreme court has previously held:
The scope of examination lies within the sound discretion
of the trial court, [State v. Hall, 616 So.2d 664, 668-69
(La.1993)]; State v. Stucke, 419 So.2d 939, 947 (La.1982);
State v. Robinson, 404 So.2d 907, 911 (La.1981), and
reviewing courts owe a district judge’s determinations on
the scope of voir dire great deference and may not disturb
them in the absence of a clear abuse of discretion. Id.
State v. Roy, 95-638, p. 16 (La. 10/4/96), 681 So.2d 1230, 1240, cert. denied, 520
U.S. 1188, 117 S.Ct. 1474 (1997).
22
Given that there is no evidence the State did not remove the picture
when defense counsel objected to its use, the fact that defense counsel did not object
the first time the State used the photograph, and the fact that the jury found Mr.
Brown not guilty on multiple counts, we cannot say the trial court abused its
discretion in denying defense counsel’s objection and not instructing the jury to
disregard the photograph.
Denial of Motion to Suppress Hearing
As noted above, the trial court denied Mr. Brown’s motion to suppress
without a hearing in response to the State’s objection to its timeliness. Louisiana
Code of Criminal Procedure Article 521 requires that pre-trial motions such as a
motion to suppress be filed within fifteen days of arraignment unless good cause is
shown. Although Mr. Brown concedes that his motion was filed more than fifteen
days after arraignment, he contends La.Code Crim.P. art. 703(C) allows the trial
court to accept untimely motions to suppress when it states “[t]he court in its
discretion may permit the filing of a motion to suppress at any time before or during
the trial.” Mr. Brown also avers that the trial court misstated the law when it told
counsel at the hearing: “Yeah, I think what the -- what the code requires as -- at this
late filing, I think you have a burden of showing good cause why the motion has not
been filed timely so I will give you that opportunity.”
Though the above quote is a misstatement of the law under La.Code
Crim.P. art. 703(C), the statement is nevertheless accurate with regard to La.Code
Crim.P. art. 521(B)’s mandatory allowance of late-filed motions on “a showing of
good cause[.]” Defense counsel then put forth the following argument for good
cause:
23
Right, and what I’m saying is, the only good cause
that I can show is just an overburdened public defender
system that I am part of. I’m proud to be part of that. I do
very detailed work. I’m sure you’re aware of how I set my
files up. Good quality legal work takes time. I -- I’m not
a compromising guy and this has just been one of
thousands of things that I’ve had to deal with and as -- I
just wasn’t able to get it in on time. I certainly wasn’t able
to get it in -- Mr. Casetti Brown was arraigned on January
3rd, 2018 on the amended bill of information. There was
no way -- excuse me for saying this -- no way in hell I
could have done it by -- . . . January 18th.
The trial court did not find defense counsel’s claims of being
overworked constituted good cause for the late filing of the motion given that trial
was scheduled for less than two weeks from the date of the hearing on the State’s
objection. Mr. Brown, however, contends the motion to suppress should have been
heard, citing State v. Doucet, 359 So.2d 1239, 1249 (La.1978), for the premise that
a claim by a defendant that his constitutional rights have been violated should be
tried even during trial, “unless it can be shown that defendant’s failure to file a
pretrial motion was a deliberate strategic bypass of the State procedure.”
Despite the language of Doucet, Louisiana courts recognize the
discretion of the trial court to refuse to accept motions to suppress in cases wherein
the motions are untimely filed on their face. In State v. Vail, 17-354, p. 50 (La.App.
3 Cir. 12/28/17), 236 So.3d 644, 678, writ denied, 18-202 (La. 11/20/18), 256 So.3d
998, cert. denied, __ U.S. __, 139 S.Ct. 1232 (2019), this court upheld a trial court’s
finding of untimeliness when the defendant submitted a generic, non-specific motion
to suppress, reasoning:
“The trial court is afforded great discretion when ruling on
a motion to suppress, and its ruling will not be disturbed
absent abuse of that discretion.” State v. Lee, 05-2098, p.
15 (La. 1/16/08), 976 So.2d 109, 123. In State v. Cleary,
262 La. 539, 263 So.2d 882 (La.1972), the supreme court
24
found no abuse of discretion when the trial denied a late
and generic oral motion to suppress.
Although Mr. Brown’s motion was not generic like the motions filed in
Vail and Cleary, his motion to suppress, filed more than six months after his
arraignment, was untimely under La.Code Crim.P. art. 521 on its face. Finding
defense counsel failed to establish good cause, the trial court in this case denied the
motion to suppress as untimely. Furthermore, the trial court ultimately ruled upon
the merits of Mr. Brown’s motion when counsel raised the same contentions at trial
as objections to the introduction of the evidence he had sought to suppress. We
cannot, therefore, say the trial court abused its discretion in denying a hearing on
Mr. Brown’s motion. This argument is the same argument presented by Mr. Brown
in his first pro se assignment of error, and for the reasons stated, we find that both
lack merit.
Because we cannot say the cumulative effects of Mr. Brown’s alleged
errors resulted in an injustice being done, the standard applicable to overturning a
trial court’s ruling on a motion for new trial, we find this assignment of error
meritless.
Habitual Offender Law
In his second counseled assignment of error, Mr. Brown claims the trial
court applied the wrong version of the habitual offender law, La.R.S. 15:529.1, in
adjudicating him a habitual offender. Specifically, Mr. Brown contends the trial
court (1) incorrectly applied a ten-year cleansing period instead of the proper fiveyear period; (2) improperly limited his cross-examination of a witness during the
habitual offender hearing while his counsel was contesting when his federal
25
detention ended; and (3) incorrectly found the State proved the applicable five-year
cleansing period had not passed.
Discussing the series of events which led to the amendment of La.R.S.
15:529.1 in both 2017 and 2018, the supreme court in State v. Lyles, 19-203, p. 5
(La. 10/22/19), 286 So.3d 407, 410 (footnotes omitted), recently stated:
We note at the outset, from the plain language of
these provisions in conjunction with the effective dates of
the acts, the legislature appears to have created three
categories of persons potentially affected by these
provisions:
1. There are persons—like the present
defendant—whose convictions became final
on or after November 1, 2017, and whose
habitual offender bills were filed before that
date. Those defendants would be eligible to
receive the benefits of all ameliorative
changes made by Act 282.
2. There are persons whose
convictions became final on or after
November 1, 2017, and whose habitual
offender bills were filed between that date
and August 1, 2018 (the effective date of Act
542). Those persons would be eligible to
receive the benefit of the reduced cleansing
period, and they may also have colorable
claims to the other ameliorative changes
provided in Act 282, although we need not
decide that question today.
3. Finally, there are persons whose
convictions became final on or after
November 1, 2017, and whose habitual
offender bills were filed on or after August 1,
2018. They would receive the reduced
cleansing period by operation of Subsection
K(2) added by Act 542 but their sentences
would be calculated with references to the
penalties in effect of the date of commission
in accordance with Subsection K(2) added by
Act 542.
26
As Mr. Brown’s conviction and sentence have not become final, we
agree with Mr. Brown that he falls into the third category, meaning the applicable
cleansing period for Mr. Brown’s habitual offender adjudication is five years. Thus,
the trial court erred in finding the applicable cleansing period was ten years.
However, the trial court calculated Mr. Brown’s cleansing time as amounting to “just
less than three (3) years” for the convictions arising out of the June 3, 2017 arrest
and “just over three (3) years” for the convictions arising out of the October 31, 2017
arrest. The trial court calculated this time based upon a September 8, 1994
conviction, a September 8, 1995 conviction with a May 7, 1995 offense date, and a
March 14, 2006 conviction with an August 14, 2003 offense date, as follows:
The time between the first conviction on September
8, 1994 until the offense date of his second felony of May
7, 1995 is zero (0) years, as he was still on felony
supervision. The time between the second conviction of
September 8, 1995 until the third conviction offense date
of August 14, 2003 is zero (0) years, as he was still on
felony supervision. Mr. Brown was released from felony
supervision on July 25, 2014. The instant offenses were
committed June 9, 2017 and October 31, 2017.
As will be discussed below, Mr. Brown contends the use of the July 25,
2014 date, the date he was released from federal custody, was error. However, the
State asserts that Mr. Brown failed to preserve any complaint against the calculation
of his cleansing period by failing to object to the calculation, as set out in the trial
court’s written ruling, at sentencing or in his timely-filed motion to reconsider.
Under La.Code Crim.P. art. 881.1(E):
Failure to make or file a motion to reconsider
sentence or to include a specific ground upon which a
motion to reconsider sentence may be based, including a
claim of excessiveness, shall preclude the state or the
defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal
or review.
27
Regardless, habitual offender proceedings are generally reviewed as
errors patent. Accordingly, we will consider Mr. Brown’s claim, despite his failure
to previously object to the trial court’s determination of his habitual offender status.
As stated above, the trial court erred in finding the applicable cleansing
period was ten years when it was actually five years. In its habitual offender
memorandum to the trial court, the State correctly asserted there was a five-year
cleansing period.7 Despite this, however, we find the trial court did not err in finding
Mr. Brown’s cleansing period did not begin until his release from federal custody,
as Louisiana courts have unanimously and consistently held that computation of the
cleansing period is based upon actual date of release from custody or supervision.
See State v. Anderson, 349 So.2d 311 (La.1977); State v. Robinson, 549 So.2d 1282
(La.App. 3 Cir. 1989); State v. Thomas, 52,617 (La.App. 2 Cir. 5/22/19), 272 So.3d
999, writ denied, 19-1045 (La. 2/10/20), __ So.3d __; and State v. Stock, 16-552
(La.App. 5 Cir. 2/22/17), 212 So.3d 1268.
There is no dispute that Mr. Brown was released from federal custody
on July 24, 2014.8
While the State bears the burden of proving the cleansing period
had not passed, the evidence produced at the hearing established that Mr. Brown was
not released from federal custody until July 24, 2014. Accordingly, we find the trial
court’s calculation of Mr. Brown’s cleansing period was correct and the applicable
7Mr. Brown’s supervised release on his March 14, 2006 conviction was revoked on October
28, 2010. However, sentencing was “deferred until charges contained in violation #1 are disposed
of.” On February 29, 2012, Mr. Brown was then “sentenced to 24 months, concurrent with
sentence imposed in 2:10-cr-00291” of 150 months incarceration, with eight years of supervised
release and credit for time served. The federal docket number 2:10-cr-00291 is the docket number
vacated in U.S. v. Brown, 567 F.App’x. 272. Given all of this information, Mr. Brown is correct
that he should have been released from custody on his 2006 conviction no later than October 28,
2012, given his revocation date, sentence, and not granting any good time diminutions of sentence.
8This is the date the indictment in 2:10-cr-00291 was dismissed.
28
five-year cleansing period had not run when Mr. Brown was arrested in June of 2017.
This assignment of error, therefore, lacks merit.
Admission of Statement
In his third counseled assignment of error, Mr. Brown contends the trial
court erred in admitting his statement to law enforcement on June 9, 2017, without
the State first proving he had been informed of his Miranda rights. Under La.R.S.
15:451, “[b]efore what purports to be a confession can be introduced in evidence, it
must be affirmatively shown that it was free and voluntary, and not made under the
influence of fear, duress, intimidation, menaces, threats, inducements or promises.”
Additionally, under La.Code Crim.P. art. 703(D), “the state shall have the burden of
proving the admissibility of a purported confession or statement by the defendant[.]”
The testimony whether Detective Noel Yates properly advised Mr.
Brown of his Miranda rights was somewhat contradictory. Detective Yates testified
that, when executing the June 9, 2017 warrant, he and Detective Misti Bryant Martin
immediately contacted Mr. Brown. It was Detective Yates’s testimony that he
informed Mr. Brown of his Miranda rights “as soon as the residence was secure.”
Detective Martin testified that, shortly after making contact with Mr. Brown and
advising him as to why they were there, Mr. Brown “was read his Miranda Rights
by Detective Yates.” Officer Jim Lewis of the Leesville Police Department testified
that he was wearing a body camera on June 9, 2017, when he assisted the VPNTF in
executing a warrant for Mr. Brown. He acknowledged that he did not hear Detective
Yates inform Mr. Brown of his rights in the video and stated he did not observe
anyone give Mr. Brown his Miranda rights. Officer Lewis also acknowledged that
Detectives Martin and Yates spoke with Mr. Brown before he arrived. Detective
29
Yates, who testified Officer Lewis was present when he advised Mr. Brown of his
rights, noted that a portion of the video from Officer Lewis’s body camera was not
“coherent” and that it was during this period of time that he advised Mr. Brown of
his rights.
The body camera video recording was admitted into evidence during
trial and played for the jury. On the recording, Mr. Brown can be heard making
incriminating statements about the location of drugs in the home. He further told
the detectives that the room the drugs were found in was his. Both Detective Yates
and Detective Martin testified that Mr. Brown made the statements after he had been
advised of his Miranda rights.
Mr. Brown contends there was simply not enough time within which
Detective Yates could have advised him of his rights. He further argues that because
no waiver of rights form was ever introduced, the State failed to prove his statement
was freely and voluntarily given.
In State v. Allen, 40,972, pp. 10-11 (La.App. 2 Cir. 5/17/06), 930 So.2d
1122, 1130, writ denied, 08-507 (La. 11/26/08), 997 So.2d 543, the second circuit
explained the weight afforded to the trial court’s findings in these circumstances:
A trial court’s findings following a free and
voluntary hearing are entitled to great weight and will not
be disturbed unless unsupported by the evidence. State v.
Durr, 28,197 (La.App. 2d Cir.6/26/96), 677 So.2d 596;
State v. English, 582 So.2d 1358 (La.App. 2d Cir.1991),
writ denied, 584 So.2d 1172 (La.1991). Testimony of the
interviewing police officer alone may be sufficient to
prove that the statement was given freely and voluntarily.
State v. Pittman, 585 So.2d 591 (La.App. 5th Cir.), writ
denied, 586 So.2d 545 (La.1991).
Multiple officers testified Mr. Brown was read his Miranda warnings
prior to his making an inculpatory statement that the room with drugs inside it was
30
his bedroom. As recited above, the testimony of the interviewing officer may be
sufficient proof that a statement is free and voluntary. Additionally, “[i]n reviewing
the trial judge’s ruling as to the admissibility of a confession, his conclusions on
credibility are entitled to the respect due those made by one who saw the witnesses
and heard them testify.” State v. David, 425 So.2d 1241, 1245 (La.1983).
Apparently, the trial court felt the testimony of Detectives Martin and Yates was
sufficient proof that Mr. Brown was aware of his Miranda rights prior to giving his
statement. As such, we cannot say the trial court erred in allowing the statement.
Accordingly, we find this assignment of error too lacks merit.

Outcome: For the foregoing reasons, Mr. Brown’s convictions and individual
sentences in counts one through four are affirmed. Pursuant to Ramos, Mr. Brown’s
convictions and sentences on counts six and seven are vacated. This case is further
remanded to the trial court for resentencing in order to sentence Mr. Brown on countsone through four concurrently, with the length of the sentences to be in accordance with the enhanced sentencing provisions of the Habitual Offender Law, La.R.S.15:529.1, and for a new trial on counts six and seven.

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