State of Louisiana Versus Dermaine Norman ( 2019 )

STATE OF LOUISIANA NO. 18-KA-723
VERSUS FIFTH CIRCUIT
DERMAINE NORMAN COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 12,337, DIVISION "C"
HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING
December 18, 2019
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Robert A. Chaisson
CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH
INSTRUCTIONS
FHW
MEJ
RAC
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Bridget A. Dinvaut
J. Philip Prescott, Jr.
COUNSEL FOR DEFENDANT/APPELLANT,
DERMAINE NORMAN
Meghan H. Bitoun
WICKER, J.
Defendant, Dermaine Norman, appeals his conviction for conspiracy to
commit second degree murder as obtained in violation of his constitutional
privilege against self-incrimination and right to a unanimous jury verdict.
Defendant further claims that the appellate record is insufficient. We affirm his
conviction and thirty-three year sentence as we find no merit to defendant’s alleged
violations of his constitutional rights under the Fifth, Sixth, and Fourteenth
Amendments, and find that the supplemented appellate record provides the
necessary information for a complete review. As there are errors in the Uniform
Commitment Order, we remand this case to the trial court for correction of that
order.
FACTS
On July 17, 2011, Frank Lewis was shot in front of his house on 134 East
14th Street in Reserve, Louisiana, while leaving for work. St. John’s Sheriff’s
Office deputies collected eight 9 mm shell casings in front of the residence.
During an autopsy, it was revealed that the cause of death was trauma due to a
projectile, which was recovered from the victim’s body. The victim had been shot
three times, once in the left arm and twice in the left buttock.
St. John’s Sheriff’s Office detectives arrested Carlton Brown as a suspect.
Brown admitted to driving Kentrell Bailey from Laplace to Reserve at the request
of defendant in exchange for $200, money defendant previously owed him, as well
as gas money.1 He dropped Bailey at a residence and drove down the street.
Brown thought he heard gunshots, but attributed the noise to the projects next door.
Bailey returned to the vehicle and told Brown that the person he was looking for
1
Brown testified that he knew defendant from school.
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was not home. After noticing a change in Bailey’s demeanor, Brown did not
question Bailey further.2
Defendant was interviewed on June 17, 2011, by Detectives Scott Guillory
and Jerry Fountain.3 Defendant told the detectives that he believed the victim, his
former co-worker, had provided information that resulted in defendant being shot
in the head on his way to work three weeks ago. Defendant was also questioned
several times on July 12, 2011, by the victim’s sister Eliza Eugene and Detective
Fountain; Detective Guillory and Captain Randall Joseph; and again by Detective
Fountain.4 On August 5, 2011, Detective Guillory and Detective Hymel
interviewed defendant, and after he waived his rights, defendant admitted that he
asked Brown to give his cousin Bailey a ride to Reserve to shoot the victim. 5
Defendant stated that he had forgiven Bailey an $850 debt owed to him to take care
of the situation.
William D. O’Regan, III, the chief prosecutor for the cases against Bailey
and defendant for the St. John’s District Attorney’s Office (“D.A.’s Office”),
extended an immunity agreement to defendant to obtain a conviction against
Bailey. On August 29, 2013, O’Regan and Captain Larry LeBlanc, an investigator
at the D.A.’s Office, met with defendant and his then-counsel Ed Greenlee.
Defendant had driven to the meeting at the D.A.’s office from Texas where he was
living while released on bond. O’Regan testified that he met with defendant
because he wanted to know what defendant’s testimony would be at trial before
2
On February 27, 2012, Brown pled guilty to accessory after the fact for his involvement and received a
five-year sentence.
3
This statement, referred to as Statement A in defendant’s motion to suppress, was admitted into
evidence.
4
These statements were suppressed after a hearing on defendant’s motion to suppress for failure to
provide reliable evidence to suggest that defendant waived his rights.
5
This statement, referred to as Statement E in defendant’s motion to suppress, was found admissible by
the trial court.
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granting defendant immunity. O’Regan testified that defendant related to him that,
believing the victim had put a hit out on him, he enlisted Bailey to kill the victim
and gave him cash or forgave a debt. Defendant told O’Regan that after the
murder, Bailey called and said “it was done.” Defendant thereafter signed the
immunity from prosecution agreement, accepting the offer in exchange for his
“accurate, complete, and truthful testimony” at Bailey’s trial.
Defendant then provided a recorded statement to Detective Fountain with his
attorney present. In that statement, defendant related that he told Bailey that he
thought he was set up by the victim, to which Bailey responded “somebody’s gotta
go.” Defendant understood this to mean that the victim would be shot. Bailey
offered to take care of it, and defendant thought that Bailey would “rob him, shoot
him.” Defendant hesitated to speak further when Detective Fountain directly asked
him about the details of the deal. Defendant and his attorney spoke privately
outside of Detective Fountain’s presence. Upon their return, Mr. Greenlee related
defendant’s concerns that the statement was “not something that is designed or set
up to have new charges filed against him or come back against him, . . .that
anything he says today and when he testifies on the ninth or any other time he has
to go to court on this case, cannot and will not be used against him.” Mr. Greenlee
sought assurances that after giving the statement, defendant would be free to return
to Texas and “no new charges or any charges arising out of any of this statement or
testimony will ever be brought against him.”
Detective Fountain stated that, according to the D.A.’s office, after giving
his statement defendant “will be released and he’ll be allowed to go back to Texas
as long as he appears on the ninth for the trial to testify.” He further assured
defendant that no federal charges would be brought against defendant and his
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material witness warrant would be recalled. Defendant then told Detective
Fountain that he paid Brown $200 in advance to pick up Bailey. Brown and Bailey
went to the victim’s house on two occasions; “Frank got killed” on their second
trip. It was understood that Bailey’s debt would be cleared upon Bailey “taking
care of it.”
After signing the immunity agreement, Captain LeBlanc served
defendant with a subpoena for Bailey’s trial date. Defendant, however,
failed to appear on Monday, September 9, 2013, when the D.A.’s office
would have made arrangements for him to stay at a hotel outside of the
parish. Captain LeBlanc spoke to defendant on multiple occasions on
September 9th, and defendant told him that he was having car troubles and
he was afraid for his life. When defendant failed to appear for Bailey’s trial
on the morning of September 10, 2013, the State allowed Bailey to plead
guilty to one count of conspiracy to commit second degree murder and one
count of attempted possession of a firearm by a convicted felon with a
sentence of five years imprisonment on each count to be served
concurrently.
PROCEDURAL HISTORY
On September 17, 2012, the St. John District Attorney filed a bill of
information charging defendant, Dermaine Norman, with conspiracy to commit
second degree murder in violation of La. R.S. 14:26 and La. R.S. 14:30.1. On
October 4, 2012, defendant was arraigned and pled not guilty.
On August 29, 2013, defendant entered into an immunity agreement with the
D.A.’s Office in exchange for immunity for the charged offense, and the terms of
the agreement detailed that he would testify at his co-conspirator Kentrell Bailey’s
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trial. On September 10, 2013, when defendant failed to appear, the State orally
voided the immunity agreement and a bench warrant was issued for defendant.
On March 26, 2014, defendant filed a motion to suppress various statements
made to St. John’s Sheriff’s Office detectives.6 The State filed an objection to the
motion, arguing that the motion lacked specificity and should be denied. On
October 13, 2014, defendant supplemented his March 2014 motion to suppress,
identifying six specific statements he sought to suppress. Of note, he sought to
suppress the August 29, 2013 recorded statement made to Detective Jerry Fountain
at the D.A.’s office wherein he implicated himself and Bailey in exchange for
immunity from the State. Defendant’s motion to suppress was heard on October
13 and December 8, 2014. On February 27, 2015, the trial court issued a written
judgment granting the motion to suppress as to the August 29, 2013 statement
because it was not voluntary as it was made during the course of immunity
negotiations and defendant had not received Miranda7 warnings before making that
statement.8
The State sought this Court’s supervisory review of the trial court’s
suppression of the August 29, 2013 statement. On June 25, 2015, this Court
granted the State’s writ, held that the statement was admissible, and remanded the
matter for proceedings consistent with its disposition. See State v. Norman, 15-259
(La. App. 5 Cir. 6/25/15) (unpublished writ disposition) (JJ., Wicker, Murphy,
6
Defendant also filed a motion to quash the bill of information on the ground that he had been granted
immunity for the offense. On July 24, 2014, the trial court issued a written ruling denying the motion to
quash, finding that defendant materially breached the immunity agreement by failing to testify at Bailey’s
trial.
7
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)(finding that the Fifth
Amendment requires a defendant to be informed of his rights before a custodial interrogation).
8
After Detective Stevens failed to appear at the hearing to identify his signature on the waiver of rights
form used in connection with defendant’s July 12, 2011 statement, the trial court found that the State
failed to produce reliable evidence to suggest that defendant waived his rights and therefore also
suppressed that statement.
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Johnson). On July 28, 2015, defendant filed a writ with the Louisiana Supreme
Court, which was not considered due to its untimely filing. State v. Norman, 15-
1467 (La. 8/28/15), 174 So.3d 1158.9
Subsequently, on May 6, 2016, the State filed a Notice of Intent to Introduce
Defendant’s Statements. The State indicated its intention to introduce defendant’s
August 29, 2013 unrecorded statement made to Assistant District Attorney
O’Regan and Investigator LeBlanc, as well as the August 29, 2013 recorded
statement to Detective Fountain in its case-in-chief. On May 9, 2016, defendant
filed an opposition, stating that the statement made to Mr. O’Regan and Mr.
LeBlanc was not previously the subject of a suppression motion, and the State had
the burden of proving the admissibility of the statement. The statement was
ultimately determined to be admissible by this Court.10
On May 9, 2016, defendant filed a motion to declare La. C.Cr.P. art. 782(A)
and La. Const. art. 1, § 17 unconstitutional. Defendant argued that the statutes
were unconstitutional to the extent they allowed for a non-unanimous verdict in
non-capital felony cases. The trial court denied the motion after a hearing.
Defendant filed a Motion to Suppress Statement Given Under Inducement or
Promise on May 9, 2016. Defendant once again challenged his recorded statement
to Detective Fountain. On May 17, 2016, the trial court issued a written ruling,
finding that it would permit the use of defendant’s August 29, 2013 statement to
Detective Fountain as res judicata.
9
Defendant sought reconsideration of the court’s ruling, which was also denied. State v. Norman, 15-
1467 (La. 10/9/15), 178 So.3d 996.
10
The trial court ruled that the unrecorded statement made to Mr. LeBlanc and Mr. O’Regan was
inadmissible at trial due to the State’s late notice to use it and failure to disclose it earlier. On July 29,
2016, this Court granted the State’s application for supervisory review, holding that the trial court erred in
finding the State did not properly give notice that it would use the statement. See State v. Norman, 16-351
(La. App. 5 Cir. 7/29/16) (unpublished writ disposition) (JJ., Windhorst, Liljeberg, Murphy). The
Louisiana Supreme Court denied defendant’s writ application on October 10, 2016. State v. Norman, 16-
1625 (La. 10/10/16), 207 So.3d 411.
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Trial was held before a twelve-person jury on October 11-12, 2016. During
deliberations, the jury requested defendant’s recorded statement to Detective
Fountain, which the trial judge denied. The jury returned a verdict of guilty as
charged, with ten jurors concurring on the record. On December 20, 2016, the
State filed a multiple offender bill of information against defendant, alleging that
he was a third-felony offender under La. R.S. 15:529.1.
On June 21, 2017, defendant filed a Motion for New Trial under La. C.Cr.P.
art. 851(B)(5), arguing that the ends of justice would be served by granting him a
new trial. He argued that his inculpatory statements should not have been used
against him at trial and their use was a breach of his immunity agreement.
Defendant proclaimed that he did not know he was required to make himself
available to testify nor did he realize his failure to do so would result in his
statement being used against him. On August 22, 2017, the trial court denied the
motion for new trial, relying on this Court’s ruling on the admissibility of the
statement. On October 19, 2017, a multiple bill hearing was held, after which the
trial court found that the State presented competent evidence that defendant was a
third-felony offender under La. R.S. 15:529.1(D)(2)(b). The trial court then
sentenced defendant as a third-felony offender to thirty-three years in the
Department of Corrections. Defendant filed a timely motion to appeal.
DISCUSSION
Defendant alleges three assignments of error.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, defendant argues that the admission of his
August 29, 2013 statement to Detective Fountain resulted in his conviction being
obtained in violation of his right against self-incrimination. He asserts that this
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Court erred in its reversal of the trial court’s ruling since there was no explicit
agreement between the parties that the statement would be used against him if he
breached the agreement. He avers that review of the statement indicates that this
Court misinterpreted the exchange that occurred between Detective Fountain, Mr.
Greenlee, and himself, and the record fails to support this Court’s prior finding.
Defendant further asserts that the admission of his statement was not harmless
error as it was important to the jury’s determination of his guilt.
At the October 23, 2014 hearing on the motion to suppress, Detective
Fountain testified that he did not advise defendant of his rights before taking the
recorded statement on August 29, 2013, because defendant’s attorney, Mr.
Greenlee, was present and defendant was not in police custody. Mr. Greenlee
testified that it was his understanding that defendant provided the statements based
on the promise of immunity. On December 8, 2014, the second day of hearings on
defendant’s motion to suppress, defendant argued that the State failed to prove that
the August 29, 2013 statement was voluntary and that it was made solely based
upon the promise of immunity and release from jail. The trial court in its February
27, 2015 judgment suppressed the August 29, 2013 statement, finding that it was
not voluntary because defendant was induced to make it by a promise that the State
would not prosecute him in exchange for his testimony. The court found that the
State had not shown the statement was freely given or that the defendant was
Mirandized.
On our prior review of the trial court’s suppression of the statement, this
Court held that there was no requirement for defendant to receive his Miranda
warnings before making the statement, as his counsel was present throughout the
entire statement and even left the room with defendant to confer in private. This
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Court additionally held that the statement was freely and voluntarily made, as the
recording of the statement reflects that the terms of the agreement were discussed,
including the condition that defendant return to testify at Bailey’s trial, despite the
fact that the actual written immunity agreement did not address the recorded
statement. And finally, this Court held that defendant’s failure to appear in court
to testify on the agreed upon date was a breach of the negotiated immunity
agreement not to use the statement against him and was thus admissible against
him. See State v. Norman, 15-259 (La. App. 5 Cir. 6/25/15) (unpublished writ
disposition) (JJ., Wicker, Murphy, Johnson).11
Under the doctrine of “law of the case,” an appellate court will generally
refuse to reconsider its own rulings of law on a subsequent appeal in the same case.
State v. Falcon, 13-849 (La. App. 5 Cir. 3/12/14), 138 So.3d 79, 87-88, writ
denied, 14-0769 (La. 11/14/14), 152 So.3d 877; State v. Caulfield, 10-769 (La.
App. 5 Cir. 5/24/11), 67 So.3d 600, 607; State v. Hollimon, 04-1195 (La. App. 5
Cir. 3/29/05), 900 So.2d 999, 1000. Reconsideration of a prior ruling is warranted
when, in light of a subsequent trial record, it is apparent that the determination was
patently erroneous and produced unjust results. Id.We do not find any additional evidence in the subsequent trial record that
would suggest that our prior determination on this issue was patently erroneous or
produced unjust results. We therefore decline to reconsider our previous ruling
regarding the motion to suppress. Our previous determination is consistent with
the standard set out by the Louisiana Supreme Court for admissibility of statements
given pursuant to immunity agreements in State v. Edmondson, 97-2456 (La.
11
Judge Johnson dissented with reasons, opining that he could not find, in light of the abuse of discretion
standard and based on the writ application, that the trial court erred in presuming defendant was in a
custodial interrogation at the time he gave his statement at the D.A’s office.
18-KA-723 9
7/8/98), 714 So.2d 1233. The Louisiana Supreme Court has held that admissibility
is initially dependent upon the source of the immunity. Id. at 1237. Because
statutory immunity may be “unilaterally imposed” by the State to compel a witness
to testify, the subsequent use of that testimony against the witness is prohibited due
to the displacement of his invoked Fifth Amendment privilege against self-
incrimination. Id. Informal immunity agreements, which are “bargained for,”
however, do not necessarily implicate the Fifth Amendment as they are
contractual. Id.12 Therefore, to be admissible, the defendant’s statements only
need to be free and voluntary under “the totality of the circumstances.” Id. at 1239.
While La. R.S. 15:451 requires that statements must not be made “under the
influence of fear, duress, intimidation, menaces, threats, inducements or promises,”
the Louisiana Supreme Court has stated that “any inducement offered to the
defendant is but one fact, albeit an important one, in that analysis.” Edmonson,
714 So.2d at 1239 (citing State v. Lewis, 539 So.2d at 1201-02 (La. 1989)). We
previously found the statement to be voluntary, as defendant’s statements were the
product of a “free and unconstrained choice” where he had “potential to gain,
something from an exchange, and where no fraud or force is involved.” State v.
Norman, 15-259 (La. App. 5 Cir. 6/25/15) (citing Edmonson, 714 So.2d at 1239-
40).
Our prior ruling is not patently erroneous requiring reconsideration.
Furthermore, the decision to admit the statement did not produce unjust results.
12
A contractual analysis of the immunity agreement in this case is not possible as the agreement does not
address the use of any recorded statements provided by the defendant, distinguishing this case from those
cited by the defendant’s brief. In State v. Lewis, 539 So.2d 1199, 1205 (La. 1989) the defendant’s
agreement stated that anything he communicated in connection with the plea agreement would not be
used against him. The Louisiana Supreme Court found the statements arose out of and were demanded by
the agreement. In State v. Gross, 621 So.2d 130, 133 (La. 1993) the defendants “acknowledged that if
they did not fulfill the terms of the agreement their statements could be used as evidence in any
subsequent prosecution.”
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This confession was not defendant’s only incriminating statement. The jurors
heard the testimony regarding defendant’s prior confession on August 5, 2011 to
Detective Hymel, defendant’s statements to Mr. O’Regan, as well as defendant’s
request to Mr. Brown. Therefore, we decline to reconsider our prior ruling that the
admission of defendant’s statement to Detective Fountain was not a violation of his
right against self-incrimination. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, defendant argues that his conviction was
returned by a non-unanimous jury verdict violating his Sixth and Fourteenth
Amendment constitutional rights. He points out that the United States Supreme
Court is currently reconsidering the issue in Ramos v. Louisiana13 and has
reviewed this issue only once, over forty years ago in Apocado v. Oregon, 406 U.S.
404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), which resulted in a plurality decision.
On May 9, 2016, defendant filed a motion to declare La. C.Cr.P. art. 782(A)
and La. Const. art. 1, § 17 unconstitutional to the extent they allowed for a non-
unanimous verdict in this non-capital felony case. The motion was heard that same
date, and the State argued that the motion should be denied on its face because the
Louisiana Attorney General’s Office was not served in accordance with La. C.C.P.
art. 1880. State v. Saulny, 16-734 (La. App. 5 Cir. 5/17/17), 220 So.3d 871, 880,
writ denied, 17-1032 (La. 4/16/18), 240 So.3d 923. The trial court denied the
motion, stating that it had visited the issue many times and was not persuaded by
the arguments presented.
13
State v. Ramos, 16-1199 (La. App. 4 Cir. 11/2/17), 231 So.3d 44, 54, writs denied, 17-2133 (La.
6/15/18), 257 So.3d 679, and 17-1177 (La. 10/15/18), 253 So.3d 1300, cert. granted, – U.S. –, 139 S.Ct.
1318, 203 L.Ed.2d 563 (2019) is currently before the Supreme Court of the United States to address
whether a state criminal defendant has the right to a unanimous jury verdict pursuant to the Sixth
Amendment of the United States Constitution as incorporated through the Fourteenth Amendment of the
United States Constitution.
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Following the jury’s verdict, defendant requested polling of the jury. The
trial court polled the first ten jurors, all of whom indicated that they had returned a
verdict of guilty. Having reached a concurrence of ten, the trial court found that
the verdict was legal and did not poll the remaining two jurors. Thus, it is not clear
whether the jury’s verdict was unanimous.
While La. Const. art. 1, § 17(A) and La. C.Cr.P. art. 782(A) were recently
amended to require a unanimous jury verdict of twelve for those offenses in which
punishment is necessarily confinement at hard labor, the language of those
amendments explicitly provides that they are applicable to offenses that occur on
or after January 1, 2019. Defendant’s offense was committed on June 17, 2011,
and therefore, the pre-amendment versions of the statutes apply. The
constitutionality of the previous versions of La. Const. art. 1, § 17(A) and La.
C.Cr.P. art. 782(A) have been addressed by many courts, all of which have rejected
the argument at this time. See Apodaca v. Oregon, supra; State v. Bertrand, 08-
2215, 08-2311 (La. 3/17/09), 6 So.3d 738, 742-43; State v. Brooks, 12-226 (La.
App. 5 Cir. 10/30/12), 103 So.3d 608, 613-14, writ denied, 12-2478 (La. 4/19/13),
111 So.3d 1030. As an intermediate appellate court, this Court is obliged to follow
the precedent established by the Louisiana Supreme Court. See State v. Thomas,
10-220 (La. App. 5 Cir. 11/9/10), 54 So.3d 678, 686, writs denied, 10-2758 (La.
4/25/11), 62 So.3d 89 and 10-2752 (La. 5/20/11), 63 So.3d 974. Therefore, even if
defendant’s verdict was not unanimous, this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, defendant argues that his right to judicial
review has been denied because the appellate record is incomplete. He asserts that
this Court’s failure to order supplementation of the record with case number 2011-
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CR-302 has precluded him from developing potentially critical issues on appeal,
such as whether his right to a speedy trial was violated and whether the allotment
and transfer of his case was a maneuver by the State to ensure the judge of its
choice was selected. He further asserts that his inability to fully review the hearing
transcript from the multiple bill proceeding has prevented him from asserting any
illegality in his multiple offender proceeding.
La. Const. art. I, § 19 provides that no person shall be subjected to
imprisonment without the right of judicial review based upon a complete record of
all evidence upon which the judgment is based. La. C.Cr.P. art. 843 requires, in all
felony cases, the recording of “all of the proceedings, including the examination of
prospective jurors, the testimony of witnesses, statements, rulings, orders, and
charges by the court, and objections, questions, statements, and arguments of
counsel.”
A defendant has a right to a complete transcript of the trial proceedings,
particularly where, as in this case, appellate counsel did not represent defendant at
trial. Material omissions from trial court proceedings bearing on the merits of an
appeal require reversal; however, a slight inaccuracy in a record or an
inconsequential omission that is immaterial to a proper determination of the appeal
does not require reversal of a conviction. A defendant is not entitled to relief
because of an incomplete record absent a showing of prejudice based on the
missing portions of the transcript. State v. Castleberry, 98-1388 (La. 4/13/99), 758
So.2d 749, 773, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185(1999); State v. Lampkin, 12-391 (La. App. 5 Cir. 5/16/13), 119 So.3d 158, 166,
writ denied, 13-2303 (La. 5/23/14), 140 So.3d 717. “The materiality of a given
omission is measured by the prejudicial effect of the omission on the defendant in
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accessing the full scope of appellate review.” State v. Pernell, 13-0180 (La. App. 4
Cir. 10/2/13), 127 So.3d 18, 28, writ denied, 13-2547 (La. 4/4/14), 135 So.3d 640.
Speedy Trial Right
Defendant alleges that failing to supplement the record with the previous
consolidated case prevents counsel from determining whether his right to a speedy
trial was violated. In State v. Cowger, 581 So.2d 283, 286 (La. App. 5 Cir. 1991),
this Court noted that any allegation of a violation of La. C.Cr.P. art. 701 is moot
after trial and conviction. Thus, even if defendant’s right to a speedy trial was
violated, the issue is now moot. See State v. Johnson, 08-1156 (La. App. 5 Cir.
4/28/09), 9 So.3d 1084, 1091, writ denied, 09-1394 (La. 2/26/10), 28 So.3d 268.
Transfer of Case
Defendant alleges that failing to supplement the record with the previous
consolidated case also prevents counsel from fully reviewing the allotment and
transfer of his case and recusal of judges. The present appellate record reveals the
history of allotment and transfer of this case. A review of the minute entries
indicates that this matter was first allotted to Division “A,” realloted to Division
“B,” and was then allotted to and remained in Division “C.” The record contains a
written objection filed by defendant’s prior counsel Richard Brazen, Jr., as well as
the parties’ arguments in 2012 as to the reallotment and transfer of the cases, and
the trial court’s ruling. The record additionally reflects the trial judge’s
reconsideration and reversal of the ruling and the retransfer of this case to Division
“A” on November 26, 2012, and her reasons for the ruling. The record contains
the State’s motion to recuse Judge Jasmine, noting that she had recused herself due
to her relationship with a State witness and Bailey. Therefore, this argument is
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without merit as the supplemental record is sufficient for defendant to fully raise an
argument about realottment and transfer of this case.
Multiple Bill Proceeding
A supplement to this record was filed on March 7, 2019, containing the
multiple bill proceeding. On June 13, 2019, appellate counsel filed a Motion for
Complete and Accurate Transcript and Motion to Supplement the Record, wherein
she argued that despite supplementation of the multiple bill hearing transcript, it
still appeared that a portion of the proceeding was missing. This Court denied
counsel’s motion. Defendant fails to show that the proceeding from October 19,
2017 is “incomplete and inaccurate,” as our reading of the transcript corroborates
the details of the hearing contained in the corresponding minute entry.
In conclusion, defendant has not demonstrated or particularized how he has
been prejudiced by the failure of this Court to order supplementation of the
appellate record with the record in 2011-CR-302, and it appears that the multiple
bill hearing record has been fully supplemented. The record before this Court does
not contain any material omissions that would preclude a complete appellate
review nor are the transcripts so lacking that defendant’s assignments of error
could not be addressed. The supplemental record provides the necessary
information for a complete review required for defendant to perfect his appeal.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175(La. App. 5 Cir. 1990). The State of Louisiana Uniform Commitment Order
(UCO) located in the record fails to reflect that defendant received an enhanced
sentence on count one and that this matter involved a multiple bill proceeding.
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Also, it incorrectly reflects defendant’s conviction date as October 19, 2017 (the
date he was sentenced); defendant was convicted on October 12, 2016.
Therefore, this matter is remanded to the trial court with instructions for it to
correct the inconsistencies in the UCO. We further direct the Clerk of Court for
the 40th Judicial District Court to transmit the original UCO to the appropriate
authorities and the Department of Corrections’ legal department. See State v.
Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P.
art. 892(B)(2)).
CONCLUSION
Declining to reconsider our previous ruling on the admissibility of
defendant’s statements given pursuant to immunity agreements, we find no merit
to defendant’s first assignment of error. As the Louisiana Supreme Court has
previously found the pre-amendment versions of La. Const. art. 1, § 17(A) and La.
C.Cr.P. art. 782(A) to be constitutional, we find no merit to the second assignment
of error. We further find no merit to the third assignment of error, which fails to
demonstrate material omissions precluding complete appellate review. Therefore,
we affirm defendant’s conviction and sentence and remand this case to the trial
court for correction of the Uniform Commitment Order.
CONVICTION AND SENTENCE
AFFIRMED; REMANDED WITH
INSTRUCTIONS
18-KA-723 16
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 18, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
18-KA-723
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE J. STERLING SNOWDY (DISTRICT JUDGE)
HONORABLE BRIDGET A. DINVAUT MEGHAN H. BITOUN (APPELLANT) J. PHILIP PRESCOTT, JR. (APPELLEE)
(APPELLEE) J. TAYLOR GRAY (APPELLEE) GRANT L. WILLIS (APPELLEE)
COLIN CLARK (APPELLEE)
MAILED
HON. JEFFREY M. LANDRY (APPELLEE)
ATTORNEY GENERAL
LOUISIANA DEPARTMENT OF JUSTICE
1885 NORTH 3RD STREET
6TH FLOOR, LIVINGSTON BUILDING
BATON ROUGE, LA 70802