State of Louisiana v. Breyiana Brown

STATE OF LOUISIANA * NO. 2019-KA-0248 VERSUS *

COURT OF APPEAL BREYIANA BROWN *

FOURTH CIRCUIT

*

STATE OF LOUISIANA

******* APPEAL FROM

CRIMINAL DISTRICT COURT ORLEANS PARISH

NO. 531-281, SECTION “E” Honorable Keva M. Landrum-Johnson, Judge ****** Judge Roland L. Belsome ******

(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano) Paul J. Barker The Law Offices of Paul J. Barker, LLC 700 Camp Street, Suite 418 New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT Donna Andrieu Assistant District Attorney Irena Zajickova Assistant District Attorney Leon Cannizzaro DISTRICT ATTORNEY ORLEANS PARISH 619 S. White Street New Orleans, LA 70119

COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED MARCH 4, 2020 Defendant, Breyiana Brown, appeals her conviction and sentence for manslaughter, complaining of the non-unanimous jury verdict and excessive sentence. A review of the record reveals only an error patent related to the restriction of benefits. As such, Defendant’s conviction is affirmed. The sentence is amended to delete the improper restriction of benefits, and affirmed as amended. FACTUAL AND PROCEDURAL HISTORY

On July 13, 2016, Defendant shot the victim, Michelle Verasmende, numerous times in an apartment parking lot in New Orleans over a dispute involving drugs and jewelry.1 The suspects were seen driving the victim’s vehicle away from the scene. Shortly thereafter, the vehicle was dumped and burned. After Defendant was developed and identified as a suspect, she was stopped for questioning, which resulted in an arrest for possession of marijuana. In addition, the police recovered a bag containing eighteen individually wrapped bags of cocaine. After a search of Defendant’s residence, police recovered marijuana and a stolen firearm, which was matched to the bullets recovered from the scene.

On November 21, 2016, Defendant was charged with five offenses by grand jury indictment: 1) second-degree murder, 2) obstruction of justice, 3) possession with intent to distribute cocaine, 4) illegal carrying of a weapon while in possession of a controlled dangerous substance,2 5) illegal possession of a stolen firearm. At arraignment, Defendant pled not guilty.

After the trial court denied Defendant’s pre-trial motions,3 trial commenced. After a four-day jury trial, the jury returned a responsive, non-unanimous verdict of manslaughter on the murder charge. On the three remaining charges, the jury unanimously found Defendant guilty as charged. After post-verdict motions were denied,4 the trial court sentenced Defendant to the following: 1) thirty years at hard labor without benefits on manslaughter, 2) twelve years at hard labor for both obstruction and possession with the intent to distribute, 3) five years at hard labor for illegal possession of a stolen firearm. The trial court ordered the sentences to run concurrently, with credit for time served. It later denied Defendant’s motion for reconsideration. This appeal followed.

ERRORS PATENT

A review of the record reveals one patent error. When imposing the sentence in connection with Defendant’s manslaughter conviction, the trial court ordered that the thirty-year sentence be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:31 provides that a sentence for manslaughter requires a sentence of up to forty years; however, the statute does not prohibit eligibility for parole, probation, or suspension of sentence unless the victim is under ten years of age, in which case the sentence must be imposed without benefit of probation or suspension of sentence for not less than ten years.5 Since the victim in this case was nineteen years old, Defendant’s sentence is amended to delete the restriction of benefits.

DISCUSSION

On appeal, Defendant raises two issues concerning the non-unanimous verdict and excessive sentence on the manslaughter conviction. First, Defendant challenges the constitutionality of the non-unanimous jury verdict rendered in connection with her manslaughter conviction. Defendant contends that the provisions authorizing non-unanimous verdicts set out in Louisiana were based upon racial discrimination and, as such, are violative of the Equal Protection Clause.

The Louisiana Supreme Court squarely addressed the issue presented by Defendant in State v. Bertrand, 08-2215 (La. 3/17/09), 6 So.3d 738. The Court noted “defendants argue that the use of non-unanimous verdicts [has] an insidious racial component, allow[s] minority viewpoints to be ignored, and is likely to chill participation by the precise groups whose exclusion the Constitution has proscribed.” Id., 2008-2215, p. 6, 6 So.3d at 742. The Bertrand Court found that a non-unanimous twelve-person jury verdict was constitutional and that La. C.Cr.P. art. 7826 did not violate the Fifth, Sixth, and Fourteenth Amendments. Id., 08- 2215, p. 8, 6 So.3d at 743. This Court, on numerous occasions, has endorsed Bertrand, supra, upholding the constitutionality of non-unanimous verdicts, finding no violation of the Equal Protection Clause. See e.g., State v. Ravy, 19- 0144, p. 8 (La. App. 4 Cir. 9/11/19) 282 So.3d 289, 302; State v. Warner, 18-0739, p. 24 (La. App. 4 Cir. 5/29/19), 274 So.3d 72, 88; State v. Young, 18-0847, p. 11 (La. App. 4 Cir. 5/1/19), 270 So.3d 896, 902.

While convictions by juries composed of less than twelve persons may be constitutionally questionable by today’s standards, we are bound by the long established holding in Williams v. Florida, which declared that a defendant’s “Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, [are] not violated by [a state’s] decision to provide a six-man rather than a 12-man jury.” 399 U.S. 78, 103, 90 S.Ct. 1893, 1907 (1970).7 For these reasons, until otherwise directed, we cannot find that the non-unanimous jury verdict on the manslaughter conviction violated the constitution.

Next, Defendant asserts that her thirty-year sentence for manslaughter is unconstitutionally excessive. In support, Defendant points to evidence that she was only twenty-five years old at sentencing; she “was a productive member of society,” having worked during her adult life and having completed one and a half years of college; and, “[m]ost importantly, she has no prior criminal history.”

“Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive and cruel punishment.” State v. Wilson, 2014-1267, p. 23 (La. App. 4 Cir. 4/29/15), 165 So.3d 1150, 1165. A sentence is excessive, even when it is within the applicable statutory range, if it is “‘grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering.’” Id., 2014- 1267, p. 25, 165 So.3d at 1166 (quoting State v. Hackett, 2013-0178, p. 14 (La. App. 4 Cir. 8/21/13), 122 So.3d 1164, 1174). “In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice.” State v. Bradley, 2018-0734, p. 8 (La. App. 4 Cir. 5/15/19), 272 So.3d 94, 100. “The excessiveness of a sentence is a question of law, and a reviewing court will not set aside a sentence absent a manifest abuse of discretion by the trial court.” State v. Alridge, 2017-0231, p. 39 (La App. 4 Cir. 5/23/18), 249 So.3d 260, 288, writ denied, 2018-1046 (La. 1/8/19), 259 So.3d 1021, petition for cert., S.Ct. No. 18-8748 (4/05/19).

In connection with Defendant’s conviction on the charge of manslaughter, Defendant was facing a sentence of up to forty years. The trial court imposed a sentence of thirty years. However, before imposing Defendant’s sentence, the court ordered a pre-sentence investigation and heard aggravating and mitigating testimony not only from the victim’s family, but also from Defendant’s family and from Defendant herself.

After listening to the testimony, the trial court noted Defendant’s failure to heed her family’s support and advice. The judge further stressed her lack of remorse.8

Although the trial judge in this case did not articulate further specific reasons for the sentence, in reviewing a claim that a sentence is excessive, an appellate court generally “must determine whether the trial court has adequately complied with the statutory guidelines in La. C.Cr.P. art. 894.1,” and whether the sentence is warranted under the facts established by the record. State v. Boudreaux, 2011-1345, p. 5 (La. App. 4 Cir. 7/25/12), 98 So.3d 881, 885. “The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions.” State v. Gibson, 2015-1390, p. 10 (La. App. 4 Cir. 7/6/15), 197 So.3d 692, 699. “Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Article 894.1.” Id. La. C.Cr.P. art. 881.4(D) expressly states that an “appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.”

In this case, the record supports the sentence imposed. Defendant turned to a life of crime, selling illegal drugs to earn money. Even after the victim’s death, Defendant continued to sell drugs. She shot the victim numerous times, leaving her to die in a parking lot. Then, she attempted to thwart the police investigation by destroying evidence and changing her phone number. She temporarily escaped to California, where she celebrated her birthday. After she was apprehended, she was uncooperative with the police and denied knowing the victim. Throughout the entire ordeal, Defendant was unremorseful until she testified at her sentencing hearing.

While Defendant’s lack of a prior criminal history may be a factor to consider, it does not absolve Defendant of the guilt associated with her conviction on the charge of manslaughter. Courts have repeatedly upheld maximum forty- year sentences for defendants with no prior criminal histories who were found guilty of manslaughter. See State v. Jones, 01-0630 (La. App. 4 Cir. 3/20/02), 814 So.2d 623 (forty-year sentence not excessive for first offender originally charged with second degree murder, but convicted of manslaughter in the shooting death of a man with whom he had fought earlier the same night); State v. White, 48,788 (La. App. 2 Cir. 2/26/14), 136 So.3d 280 (upholding forty-year sentence imposed upon first offender defendant who shot the victim, was charged with second degree murder, but convicted of manslaughter).

Since the record supports the Defendant’s thirty-year sentence for manslaughter, we do not find that the trial court abused its sentencing discretion. Under the foregoing circumstances, her sentence is not unconstitutionally excessive.

CONCLUSION

Given that there are no grounds for reverseal, Defendant’s manslaughter conviction is affirmed. However, we amend the accompanying sentence to delete the restriction of benefits, and affirm the sentence as amended.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED