Opinion
2012 KA 0245
09-21-2012
STATE OF LOUISIANA v. JOSHUA CHARRIER
Scott M. Perrilloux District Attorney Patricia Parker Amos Assistant District Attorney Amite, LA Attorneys for Appellee State of Louisiana Lieu T. Vo Clark Louisiana Appellate Project Mandeville, LA Attorney for Defendant-Appellant Joshua Charrier
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 21st Judicial District Court
Parish of Tangipahoa, Louisiana
Docket No. 1000813, Division "D"
Honorable M. Douglas Hughes, Judge Presiding
Scott M. Perrilloux
District Attorney
Patricia Parker Amos
Assistant District Attorney
Amite, LA
Attorneys for Appellee
State of Louisiana
Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, LA
Attorney for
Defendant-Appellant
Joshua Charrier
BEFORE: PARRO, HUGHES, AND WELCH, JJ .
PARRO , J .
Defendant, Joshua Charrier, was charged by grand jury indictment with one count of second degree murder, a violation of LSA-R.S. 14:30.1. After a jury trial, he was found guilty as charged. The trial court denied defendant's motion for new trial and sentenced him to the mandatory term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging one assignment of error. For the following reasons, we affirm defendant's conviction and sentence.
FACTS
Shortly before 10:30 p.m. on January 12, 2010, defendant and his girlfriend, Kimberly Alleman, got into an argument at Alleman's residence on South Cason Road in Independence. In a statement that he gave to the police, defendant explained that Alleman was kicking him out of her home for the night, and he was attempting to make re-entry to secure some of his belongings, including a .22 caliber rifle.
During this argument, Alleman called Cynthia Cazes, defendant's mother, to make defendant believe that she was actually calling the police. Cazes called 911 when she got off the phone with Alleman, hoping the police would respond to Alleman's home to resolve the incident. Alleman also called 911 when she got off the phone with Cazes. She told the 911 dispatcher that defendant was getting violent with her. During an audible struggle on the 911 tape, Alleman yelled to the dispatcher that defendant was killing her. Soon thereafter, Alleman yelled that defendant shot her. She made no further statements to the dispatcher. Defendant picked up Alleman's phone and informed the dispatcher that Alleman had dropped the phone and that she ran away. He then disconnected the call.
Defendant fled the scene and called Cazes from Alleman's phone. Defendant told Cazes that he had shot Alleman twice in the back and that Cazes needed to call 911 and go to Alleman's house. Cazes complied and, upon arriving at Alleman's house, discovered Alleman lying in her front yard with an apparent gunshot wound to the back of her head. Alleman was also bleeding elsewhere, but Cazes did not know the location of the other wounds. Defendant was subsequently apprehended without incident. Alleman died of her wounds on January 16, 2010.
Dr. Frasier Mackenzie, an expert in forensic pathology, testified at trial that Alleman suffered four gunshot wounds from at least three different projectiles. Alleman suffered a through-and-through wound on her upper right arm, and she suffered three other wounds - one to her left buttocks, one to the right side of her back, and a fatal wound to the right side of the back of her head. Dr. Mackenzie was only able to recover the projectile from Alleman's head. Dr. Mackenzie offered the opinion that Alleman's head wound was a "contact wound," which he defined as the result of a gunshot fired within two feet of its target. Ronald Fazio, an expert in forensic firearms examination, determined that the bullet recovered from Alleman's head was fired from the .22 caliber rifle seized from defendant at the time he was arrested.
DISCUSSION
In his sole assignment of error, defendant argues that the trial court erred in failing to grant a continuance of his trial to allow his trial counsel more time to prepare for trial and to obtain an expert to analyze the audio of Alleman's 911 call. Defendant contends that further testing of this audio recording may have supported his claim that his shooting of Alleman was accidental and may have refuted the state's contention that Alleman's fatal wound was a "contact wound."
A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based. LSA-C.Cr.P. art. 707. The granting or denial of a motion for continuance rests within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion. State v. Simon, 607 So.2d 793, 798 (La. App. 1st Cir. 1992), writ denied, 612 So.2d 77 (La. 1993), overruled on other grounds. State v. Celestine, 95-1393 (La. 1/26/96), 671 So.2d 896 (per curiam). An oral motion for a continuance presents nothing for review on appeal. However, where the occurrences that allegedly make the continuance necessary arose unexpectedly, and the defense had no opportunity to prepare a written motion, an appellate court may review the denial of the motion. State v. Simon, 607 So.2d at 798. The denial of a motion for continuance, which motion is based on the ground of counsel's lack of preparedness, does not warrant reversal unless counsel demonstrates specific prejudice resulting from the denial or unless the preparation time is so minimal as to call into question the basic fairness of the proceeding. See State v. Dupre, 408 So.2d 1229, 1231-32 (La. 1982).
In his brief, defendant highlights two instances where he alleges that the trial court's failure to grant a continuance resulted in prejudice. First, defendant states that he was represented by Sherman Mack from May 19, 2010, until May 31, 2011, and that Douglas Brown was assigned to his case on July 20, 2011. Defendant states that the trial court should have granted a continuance on that date to allow Mr. Brown sufficient time to prepare for trial. Second, defendant contends that Mr. Brown was only provided with the audio recording of Alleman's 911 call on August 12, 2011, just over two weeks before his trial was set to begin on August 29, 2011, and that the trial judge should have granted a continuance to allow Mr. Brown to secure an audio expert.
A review of the record indicates that defendant's description of his representation is inaccurate. The record evidences that Mr. Brown actually represented defendant both before and after Mr. Mack. According to a written motion to continue filed by Mr. Brown on May 9, 2011, Mr. Brown initially represented defendant from January 2010 until he was replaced by Mr. Mack "for unknown reasons" on May 10, 2010. In this same motion, Mr. Brown represented to the trial court that Mr. Mack withdrew as court-appointed counsel and was replaced by Mr. Brown at the end of March 2011. Although the court minutes for May 31, 2011, noted Mr. Mack's failure to appear as if he were still counsel of record, it seems that Mr. Mack assumed no further responsibilities in defendant's case once he was replaced by Mr. Brown in March. Mr. Brown's first court appearance after his reappointment was May 11, 2011, but as alleged by Mr. Brown, he was actually reappointed as defendant's counsel prior to that date.
The record reflects that Mr. Brown had filed numerous pretrial motions on May 5, 2010.
At the July 20, 2011 motion hearing, which was set as a result of Mr. Brown's May 9, 2011 written motion for a continuance of the trial "set for the week of May 30, 2011[,]" Mr. Brown indicated to the court that he could not be ready for trial by the last week of August, because several outstanding discovery requests and motions had not been heard. The audio recording of Alleman's 911 call was one of the pieces of evidence defendant sought via his discovery requests. In an effort to accommodate Mr. Brown, the hearing on defendant's remaining motions was rescheduled without objection for August 4, 2011. However, the trial court confirmed the trial date of August 29, 2011, and denied Mr. Brown's oral motion to continue the trial.
During a bench conference, the trial court seemingly suggested a trial date at the end of August.
At the August 4, 2011 motion hearing, Mr. Brown informed the trial court that he had not yet received any 911 recordings pertaining to the incident. However, Mr. Brown did inform the court that he had personally "traveled to the 9-1-1 office and basically, held a tape recorder up to a speaker and taped the recording of the shooting[,]" but he reiterated that having the best possible audio copy was important to his ability to present a defense. The state informed the court that it had not yet received any copies of the 911 audio either, but that copies should be available the following day. At this hearing, Mr. Brown made several oral motions to continue the trial, alleging that he needed more time to prepare for trial in light of testimony that had been elicited at the motion to suppress hearing and that the discovery requests were still outstanding. The trial court denied all of these motions to continue, but set another motion hearing for August 16, 2011.
At the August 16, 2011 hearing, Mr. Brown twice moved for a continuance. In the first instance, Mr. Brown sought a continuance to allow sufficient time for receiving copies of the transcripts from other hearings, which he characterized as necessary in his preparations for trial. In the second instance, Mr. Brown asked for a continuance as an alternative to his motion that the trial court hold an additional motion to suppress hearing regarding the admissibility of any statements that defendant might have made immediately after his arrest. The trial court denied these motions in open court. Also at this hearing, Mr. Brown noted to the court his intent to file writs regarding the court's denial of several motions to suppress, motions in limine, and motions to compel, and he requested a stay of the proceedings, but the trial court denied the stay request.
After the August 16, 2011 hearing, the trial court signed an order dated August 22, 2011, stating that Mr. Brown:
moved in open court on August 16, 2011 to continue the August 29, 2011 trial for the reasons that the 911 recordings previously requested had been produced only on August 12, 2011, and for the further reasons that the audio recording appears to contain the moment of the shooting, but that no gunshots are audible, and that portions of the conversation between Defendant and the victim are inaudible or garbled, and that [Mr.] Brown seeks a continuance to retain expert audio engineers to recover gunshot information and the muted conversations ....The trial court's order ultimately denied Mr. Brown's motion for a continuance. Immediately prior to trial, defendant filed a writ application seeking review of this continuance issue, but this court denied that writ application on the showing made. See State v. Charrier, 11-1552 (La. App. 1st Cir. 8/25/11) (unpublished writ action).
We note that the arguments cited in this order do not appear anywhere in the transcript from the August 16, 2011 hearing.
Under the circumstances, it appears that Mr. Brown had ample opportunity to file a written motion for a continuance at any point following his March 2011 reappointment to defendant's case. Indeed, he filed a written motion for continuance on May 9, 2011. However, all of defendant's subsequent requests for continuances were made orally. Given that his first court reappearance as defendant's counsel occurred on May 11, 2011, and that other pretrial hearings were held on July 20, 2011, August 4, 2011, and August 16, 2011, there were several occasions where Mr. Brown could have filed written motions for a continuance immediately prior to, or following, court hearings. Nevertheless, even assuming that Mr. Brown's failure to file a written motion could be excused on some grounds, for the reasons which follow, we conclude that the trial court did not abuse its discretion in denying the oral motions for a continuance.
First, defendant states in his brief that the trial court should have granted a continuance on July 20, 2011, in order to allow time for his newly-appointed counsel to prepare for trial. However, as stated above, Mr. Brown was reappointed as defendant's trial counsel approximately four months before this hearing, and he presumably had some familiarity with defendant's case from his initial appointment in 2010. Therefore, we cannot say that the trial court abused its discretion in denying Mr. Brown's July 20, 2011 oral motion to continue the August 29, 2011 trial date.
Second, the primary argument in defendant's brief is that the trial court failed to grant a continuance to allow defendant the opportunity to secure an audio expert after he was provided with the 911 recordings just over two weeks prior to trial. Defendant argues that an analysis by an audio expert would have been able to contradict the state's claims that at least three shots were fired at Alleman and that the fatal wound to Alleman's head was a "contact wound."
We note first that, although Mr. Brown did not actually receive a copy of the 911 recordings until August 12, 2011, he had an opportunity to listen to these exact recordings at some point before the August 4, 2011 hearing date. Thus, Mr. Brown was on notice as to the contents of these recordings prior to his receipt of the copies of them. Further, it is unclear what, if any, steps Mr. Brown actually took to secure an audio expert subsequent to either his initial hearing of the recordings or to his actual receipt of the recordings. Under the circumstances, we cannot say that a period of about a month to secure an audio expert was so short as to call into question the basic fairness of the proceeding.
Finally, it is unclear that defendant suffered any prejudice as a result of the denial of any oral motion for a continuance that was made to secure an audio expert. While defendant's version of the incident was that he accidentally shot Alleman in the back only twice, the physical evidence presented at trial indicated that Alleman suffered at least four gunshot wounds from three different projectiles. Further, the fact that the 911 recording does not contain any audible gunshot sounds was characterized on the day before trial by Mr. Brown as "not an uncommon occurrence" according to his "police friends." Similarly, the absence of a recording of the gunshot, which caused the alleged "contact wound," on the 911 tape does nothing to eliminate the possibility that this wound might have been inflicted after defendant disconnected with the 911 dispatcher. Defendant provided no evidence before trial or on appeal, other than his own conjecture, that an audio expert would have resolved any of the above issues in his favor. Accordingly, on the record before us, we cannot conclude that the trial court erred, or abused its discretion, in denying defendant's motions for a continuance. This assignment of error is without merit.
These statements were made by Mr. Brown on the day before trial in reference to his ability to effectively examine Dr. Mackenzie's qualifications at a Daubert hearing.
For the foregoing reasons, we affirm defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.