State of Louisiana v. Brady J. Harrington

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-886 consolidated with 12-887

STATE OF LOUISIANA

VERSUS

BRADY HARRINGTON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 49360
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J.
Gremillion, Judges.

CONVICTION AFFIRMED; SENTENCE VACATED AND
REMANDED FOR RESENTENCING.

Michael Harson
District Attorney, Fifteenth Judicial District Court
Ted L. Ayo
Assistant District Attorney
100 North State St., Suite 215
Abbeville, LA 70510
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana

Beth S. Fontenot
Louisiana Appellate Project
P. O. Box 3183
Lake Charles, LA 70602
(337) 491-3864
COUNSEL FOR DEFENDANT/APPELLANT:
Brady Harrington

GREMILLION, Judge.

Defendant‟s friend, Paxton Trahan, kicked open a door and Defendant,

Brady J. Harrington, shot and killed Trahan‟s father. A Vermilion Parish grand

jury indicted Defendant and Trahan for second degree murder, a violation of La.

R.S. 14:30.1. On the same date, the men were separately indicted for obstruction

of justice, a violation of La.R.S. 14:130.1.1 A jury convicted Defendant of these

crimes.

The trial court sentenced Defendant to the mandatory term of life in prison

without benefit of parole, probation, or suspension of sentence on the second

degree murder conviction and to five years at hard labor on the obstruction of

justice conviction. The sentences were ordered to be served concurrently.

Defendant now appeals his convictions and sentences. He assigns five

errors but effectively abandons the fifth. This court upholds both convictions and

the sentence for obstruction of justice but must vacate the second degree murder

sentence and remand for resentencing based on a recent pronouncement by the

United States Supreme Court.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant argues that the State‟s evidence

was not sufficient to support his convictions. Specifically, he argues that both of

his experts at trial testified that he was unable to know right from wrong at the time

of the offense or to form specific intent. Jurisprudence requires that we address

this assignment first. State v. Hearold, 603 So.2d 731 (La.1992), and State v.

Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

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This matter is consolidated with docket number 12-887 in which Defendant‟s
conviction and sentence for obstruction of justice are affirmed.

The core of Defendant‟s argument is that two trial experts testified that he

did not have the cognitive capacity to be criminally liable for his actions, while the

State produced a single expert to refute them. He notes that the State expert spent

less time with him and did not perform behavioral testing on him. Also, one of

Defendant‟s friends, Mason Bedgood, testified that he was “somewhat slow” and

was a drug addict with a passive personality who looked up to Trahan. Bedgood

also testified that Trahan told him that he got Defendant to kill the victim for him.

These points were all before the jury, including Defendant‟s mild mental

retardation and drug usage. “It was within the jury‟s wide purview to make

credibility determinations and decide the weight of the expert testimony. See State

v. Mussall, 523 So.2d [1305], 1310 „(La.1988)].” State v. Williams, 07-1407, p. 27

(La. 10/20/09), 22 So.3d 867, 887, cert. denied, __ U.S. __, 130 S.Ct. 3278 (2010).

Defendant claims the jury‟s decision was irrational, but this is not supported by the

mere fact that he produced one more expert than the State or that his experts

performed more testing than the State‟s expert. The evidence showed that

Defendant obtained his G.E.D. certificate; also one of Defendant‟s experts

acknowledged “there are certainly times when he can distinguish right from

wrong.”

Further, Defendant mentions that the State‟s expert would not give an

opinion regarding whether he was able to premeditate the murder. Such a refusal

did not harm the State‟s case, as premeditation is not an element of the crime. The

elements of the crime include intent and act but not premeditation. La.R.S. 14:8;

La.R.S. 14:30.1. This court has explained, “Defendant also points out that there is

no evidence of any premeditation to attack or commit theft or any other crime

against Mr. Bernard. We do not find that any of these arguments present a

reasonable hypothesis of innocence. No premeditation is required to prove specific
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intent.” State v. Latiolais (La.App. 3 Cir.), 453 So.2d 1266, 1269, writ denied, 458

So.2d 125 (La.1984).

For the reasons discussed, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues that the trial court erred by

ruling that his statements to police were free and voluntary, as the court did not

consider psychologists‟ reports regarding his mental status. Although the State

acknowledges that Defendant objected to the admissibility of his recorded

statements at a pretrial hearing, it argues that the issue is moot because he failed to

take a pretrial writ or renew his objection at trial.

The admissibility of the confession was contested at a pretrial hearing.

However, when the video confession was offered at trial, Defendant initially

expressed no objection. After most of the confession was played, Defendant

moved for a mistrial, arguing that despite the pretrial hearing and ruling on

admissibility, the court was required to make a separate determination at trial that

the confession was free and voluntary.

The trial court denied the motion, stating that it was untimely. The trial

court also stated that it had “reviewed the entire confession” and found it to be free

and voluntary. The State briefly questioned Lieutenant Sammy Laporte of the

Vermilion Parish Sheriff‟s Office on the issue, and the officer indicated that the

confession was given freely and voluntarily.

Thus, defense counsel affirmatively stated that he had no objection when the

video confession was initially offered at trial and failed to include the current

argument regarding the psychologists when he finally challenged its admissibility.

We find no jurisprudence that indicates Defendant‟s second, more limited,

argument at trial waived or precluded appellate review of his earlier arguments.
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The second circuit has stated a general analysis regarding admissibility of

confessions:

Before a confession may be introduced into 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.” La. R.S. 15:451. The state bears the
burden of proving beyond a reasonable doubt the free and voluntary
nature of the confession at a hearing on a motion to suppress. State v.
Coleman, supra; State v. Hills, 354 So.2d 186 (La.1977). The state
must also affirmatively prove that the defendant was first advised of
his Miranda rights and that the confession was not made under the
influence of fear, duress, intimidation, menaces, threats, inducements,
or promises. State v. Johnson, 36,014 (La.App.2d Cir.6/12/02), 821
So.2d 652. The testimony of the interviewing police officer alone
may be sufficient to prove the defendant‟s statement was given freely
and voluntarily. State v. Trotter, 37,325 (La.App.2d Cir.8/22/03), 852
So.2d 1247, writ denied, 2003-2764 (La.2/13/04), 867 So.2d 689,
recon. denied, 2003-2764 (La.4/23/04), 870 So.2d 282; State v.
Henderson, 31,986 (La.App.2d Cir.8/18/99), 740 So.2d 240.

In State v. Jackson, 381 So.2d 485 (La.1980), and State v.
Morvant, 384 So.2d 765 (La.1980), the Louisiana Supreme Court
stated the principles under which the admissibility of a confession
must be judged. As a matter of federal constitutional law, a
confession obtained by any direct or implied promises, however
slight, or by the exertion of any improper influence, must be
considered involuntary and inadmissible. See Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897) and State v. Roddy,
33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-
1427 (La.5/11/01), 791 So.2d 1288.

The admissibility of a confession is a question for the trial
court, whose conclusions on the credibility and weight of testimony
relating to the voluntary nature of the confession will not be
overturned on appeal unless not supported by the evidence. State v.
Coleman, supra; State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d
916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800
(2000). Because the trial court has the opportunity to observe the
witnesses and assess their credibility, we place great weight on its
factual determinations. State v. Crews, 28,153 (La.App.2d
Cir.5/8/96), 674 So.2d 1082.

State v. Roshell, 40,374, pp. 6-7 (La.App. 2 Cir. 12/14/05), 916 So.2d 1268, 1271-

72, writ denied, 06-771 (La.10/6/06), 938 So.2d 69.

Laporte stated that he advised Defendant of his Miranda rights; Defendant

then waived said rights and made factual admissions about the murder. Under
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cross-examination, Laporte testified that he questioned Defendant about his

educational level, but trial counsel did not ask what reply was made. On re-direct,

Laporte observed that Defendant also wrote out a statement.

Defense counsel recalled Laporte to ask him about an earlier incident in

which then-juvenile Harrington threatened to commit suicide. The deputy testified

he did not remember such an incident and did not recognize Defendant when he

encountered him in the current investigation. The trial court then ruled that the

statement was free and voluntary. As Defendant now argues, the trial court did not

view the confession or refer to the psychological reports, which were produced

after the confession was made.

On appeal, Defendant cites no jurisprudence showing that the trial court

should have viewed the psychological reports; also, the trial court clearly stated

that it viewed the recorded confession. Defendant argues that he should have had

an interested adult with him during questioning but acknowledges that having such

an adult present is not absolutely required.

The State argues that Defendant was seventeen years old when he shot the

victim and, thus, was not eligible for the protections that Louisiana jurisprudence

affords a juvenile. Further, the State argues that the key issue is not whether

Defendant had any degree of mental retardation but whether he understood his

Miranda rights. Defendant‟s written confession shows his date of birth as

September 20, 1990; the offense occurred in April 2008. Thus, he was not a

“child” as defined by Louisiana law. La.Ch.Code art. 804(1); La.Const. art. 5, §

19. As for the State‟s other point, the supreme court has explained:

When the issue in a case on appeal is whether a defendant‟s
lack of intellectual ability precluded him from effectively
understanding the essential nature of his constitutional rights, much
weight is accorded the Trial Court‟s assessment. State v. Brogdon,
426 So.2d 158 (La.1983); State v. Coleman, 395 So.2d 704 (La.1981).
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Moderate mental retardation or low intelligence does not vitiate a
knowing and voluntary waiver of rights. State v. Thomas, 470 So.2d
413 (La.App. 3rd Cir.1985). The critical factor is whether the
defendant was able to understand the rights explained to him and
make a knowing and voluntary statement. There was evidence
presented from which the Trial Judge could determine that the
defendant was able to understand his rights and validly waive them.

State v. Boothe, 532 So.2d 203, 207 (La.App. 3 Cir. 1988).

Like the court below, this court has reviewed the entire DVD of the recorded

confession. Defendant appears lucid throughout and appears to fully understand

the circumstances. Giving due weight to the determinations of the trial court, and

in view of Laporte‟s testimony and Defendant‟s demeanor and responses during

his recorded confession, together with our own review of the confession, we

conclude that this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that the trial court erred

by denying his challenge for cause of a venire member who expressed doubts

regarding sanity-based and intoxication-based defenses.

This court recently explained:

By the time the jury selection process was completed, the defendant
had exhausted all of his peremptory challenges.

When an accused has exhausted all of his
peremptory challenges before completion of the jury
panel, he is entitled to complain on appeal of a ruling
refusing to maintain a challenge for cause made by him.
State v. Monroe, 366 So.2d 1345 (La.1978), appeal after
remand, 397 So.2d 1258 (La.1981), cert. denied, 463
U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1411, reh. denied,
463 U.S. 1249, 104 S.Ct. 36, 77 L.Ed.2d 1455 (1983).

State v. Scriber, 605 So.2d 661, 664 (La.App. 2 Cir.1992).

As it applies in this matter, La.Code Crim.P. art. 797(4)
provides that “[t]he state or the defendant may challenge a juror for
cause on the ground that . . . [t]he juror will not accept the law as
given to him by the court [.]” Additionally, the supreme court has
held that:
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Prejudice is presumed when a district court
erroneously denies a challenge for cause and the
defendant ultimately exhausts his peremptory challenges.
State v. Kang, 02-2812, p. 3 (La.10/21/03), 859 So.2d
649, 651; State v. Robertson, 92-2660, p. 3 (La.1/14/94),
630 So.2d 1278, 1280. A district court‟s erroneous
ruling which deprives a defendant of a peremptory
challenge substantially violates that defendant‟s rights
and constitutes reversible error. Kang, 02-2812, at p. 3,
859 So.2d at 652; State v. Cross, 93-1189, p. 6
(La.6/30/95), 658 So.2d 683, 686; State v. Bourque, 622
So.2d 198, 225 (La.1993), overruled on other grounds by
State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16;
State v. McIntyre, 365 So.2d 1348, 1351 (La.1978).
When a defendant uses a peremptory challenge after a
challenge for cause has been denied, the defendant must
show: (1) erroneous denial of the challenge for cause;
and (2) use of all peremptory challenges. Kang, 02-2812,
at p. 3, 859 So.2d at 652; Cross, 93-1189 at p. 6, 658
So.2d at 686; Robertson, 92-2660 at p. 2, 630 So.2d at
1280; State v. Lee, 559 So.2d 1310, 1316 (La.1990), cert.
denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482
(1991). In the instant case, defendant exhausted all of his
peremptory challenges, and therefore, his objection to the
ruling refusing to sustain his challenge for cause is
properly before the court.

State v. Lindsey, 06-255, pp. 2-3 (La.1/17/07), 948 So.2d 105, 107.

State v. Barnes, 11-1242, pp. 4-5 (La.App. 3 Cir. 5/2/12), 93 So.3d 666, 669.

The record indicates that Defendant exhausted his peremptory challenges,

and the State does not dispute this point. During voir dire, venire member Rachael

Lormand expressed reservations about the viability of an insanity-based defense.

At one point she said, “I think it‟s somewhat of a copout.” Later, the following

colloquy occurred:

Q Yes, Ms. Lormand. Do you take the same position that Mr.
Bengston does?

A Well, I don‟t agree with it. It‟s the law that I don‟t agree with.

Q So it‟s a law that you just couldn‟t follow?

A Right.

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Q And wouldn‟t follow?

A Again, I‟d have to hear the case, I guess.

Q Well, sure; absolutely.

A Again, it‟s somewhat of a copout.

As the parties discussed their peremptory challenges, the following

comments were made:

BY THE COURT: Mr. Ayo, Rachel Lormand?

BY MR. AYO: State accepts.

BY MR. CARROT: Defense moves for cause. She said it was a
copout. Voluntary intoxication defense was a copout.

BY MR. AYO: But she said she could accept the law. She just had to
hear all the evidence, Your Honor.

BY MR. CARROT: The last thing she said that she couldn‟t, that she
thought it was a copout. She said what you said about the insanity
defense.

BY THE COURT: Y‟all don‟t talk to each other; y‟all talk to me.
What I have written down is that she said she doesn‟t agree with the
law. She doesn‟t know if she could accept it. But after that, she said
she couldn‟t follow the law. Then she said, “Well, I would have to
hear the case.” So I‟m going to deny cause.

The prospective juror‟s final response appears equivocal. However, a trial

court‟s decision on a challenge for cause is subject to deference on review as a

majority opinion by the supreme court stated:

Both in brief and oral argument, the defendant places much
emphasis on Mr. Whitcomb‟s use of the word “probably” in response
to defense counsel‟s question regarding his likely vote if he thought
“maybe” the defendant was guilty. The voir dire transcript of defense
counsel‟s question and Mr. Whitcomb‟s response reads as follows:

Q: If you were a juror that decided this case, and after
having heard all of the evidence in the case, you thought
that maybe the Defendant did this?

A: Maybe, it would probably be Not Guilty.

8

The defendant argues that “probably” indicates Mr.
Whitcomb‟s unacceptable hesitancy to find the defendant not guilty if
the state fails to prove its case beyond a reasonable doubt. However,
we note that Mr. Whitcomb first used the word “probably” when he
stated that he would “probably” tend to believe the testimony of
police officers over that of lay witnesses; therefore, if we were to give
“probably” the inference that the defendant desires, we would not be
here in the first place. It seems that Mr. Whitcomb did not utilize the
word “probably” to demonstrate his “insistence” on crediting police
testimony or out of an unwillingness to follow the law as provided by
the trial court, but rather, it seems that Mr. Whitcomb utilized the
word more from his hesitancy to answer questions in a process to
which he was unaccustomed.

In reversing the judgment of the trial court, the court of appeal
found Mr. Whitcomb “clearly indicated that he would give more
weight to the testimony of a police officer than a lay witness.” Kang,
01-1262, p. 12 (La.App. 5 Cir 10/29/02), 831 So.2d 409, 415.
Further, the court of appeal found that Mr. Whitcomb never
unequivocally indicated he could disregard his initial bias toward
police officers. Id. These conclusions are not supported by the record
and demonstrate the court of appeal‟s failure to give proper deference
to the trial court‟s findings. Mr. Whitcomb‟s responses during voir
dire should be viewed as a whole, not on a piecemeal basis. Lee, 93-
2810 at p. 9, 637 So.2d at 108. Though some of Mr. Whitcomb‟s
remarks or references could be viewed as questionable standing alone
and out of context, when the voir dire is properly reviewed as a whole,
there is no evidence of Mr. Whitcomb‟s partiality. The record
supports the trial court‟s conclusion that Mr. Whitcomb did not state
he would give an officer‟s testimony more weight simply because he
was employed as a police officer. The court of appeal erred in
concluding that Mr. Whitcomb‟s voir dire testimony clearly indicates
his predisposition towards the testimony of a police officer than to
that of a lay witness. Moreover, it is apparent from this conclusion
that the court of appeal incorrectly failed the [sic] give the trial court‟s
conclusions any degree of deference. Properly reviewing the voir dire
record as a whole, we find no facts from which we may reasonably
imply Mr. Whitcomb‟s bias, prejudice or inability to render a
judgment according to law.

In sum, the court of appeal should not have disturbed the trial
court‟s proper refusal to strike Mr. Whitcomb for cause. The
defendant‟s assignment of error is without merit. Therefore, we
reverse the court of appeal‟s judgment to the contrary and remand this
case to the court of appeal to consider the defendant‟s remaining
assignment of error.

State v. Kang, 02-2812, pp. 7-9 (La. 10/21/03), 859 So.2d 649, 654-55.

9

The Kang opinion, viewed as a mandate for deference to trial court rulings,

supports a holding that the court in the present case did not err. Thus, this

assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, Defendant argues that his life sentence for

second degree murder, although mandated by statute, violates the United States

Supreme Court‟s recent pronouncement in Miller v. Alabama, ___ U.S. ___, 132

S.Ct. 2455 (2012). The Miller court held that the Eighth Amendment prohibits

mandatory life sentences without parole for those under eighteen at the time the

offense was committed. The Supreme Court explained that “[s]uch mandatory

penalties, by their nature, preclude the sentencer from taking account of an

offender‟s age and the wealth of characteristics and circumstances attendant to it.”

Id. at 2467.

Pursuant to La.R.S. 13:4448, this court notified the Attorney General‟s

Office of this issue. On December 10, 2012, this court received that office‟s brief.

Its first argument is that there is no showing this argument was raised below.

However, sentencing took place on February 28, 2012. The Supreme Court issued

the Miller opinion on June 25; therefore, Defendant did not have the opportunity to

raise the issue below.

The State‟s original brief notes that the defendant in Miller was fourteen

years old, while the present Defendant was seventeen years old at the time of the

offense. However, this fact has no bearing on the current analysis. The record

shows that Defendant received the mandatory sentence prescribed by La.R.S.

14:30.1: life in prison, without benefit of parole, probation, or suspension of

sentence.

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The Attorney General‟s Office concedes that if the merits are addressed, the

murder sentence must be vacated, and the case remanded for resentencing. 2

However, it suggests resentencing should be postponed until the legislature acts to

bring the statutory sentence in line with Miller. Alternatively, it proposes that

Defendant should have to serve at least thirty years in prison before becoming

eligible for parole, pursuant to La.R.S. 15:574.4, which states in pertinent part:

D. (1) Notwithstanding any provision of law to the contrary,
any person serving a sentence of life imprisonment who was under the
age of eighteen years at the time of the commission of the offense,
except for a person serving a life sentence for a conviction of first
degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1),
shall be eligible for parole consideration pursuant to the provisions of
this Subsection if all of the following conditions have been met:

(a) The offender has served thirty years of the sentence
imposed.

We are not at liberty to declare all or part of La.R.S. 15:574.4(D)

unconstitutional as no challenge to that statute has been brought before us. Neither

can we take it upon ourselves to rewrite the statute so as to bring it in line with

Miller or apply a reformed version to our analysis of Defendant‟s assigned error.

At this juncture, we can only recognize that Defendant‟s sentence must be vacated

and remanded because it clearly runs afoul of Miller.

For the reasons discussed, this assignment has merit. The second degree

murder sentence must be vacated, and the case remanded for resentencing in

accordance with Miller.

ASSIGNMENT OF ERROR NUMBER FIVE

In the original brief, appellate counsel advised that she was requesting the

transcript of the hearing on Defendant‟s motion for new trial and motion for post-

2
The Attorney General‟s Office cites State v. Crockett, an unpublished case bearing
docket number 12-415 (La.App. 1 Cir. 11/14/12), which vacated a sentence and remanded for
resentencing, pursuant to Miller.
11

verdict judgment of acquittal. She reserved the right to file a supplemental brief,

but did not file one. We consider this assignment abandoned.

DECREE

Defendant‟s conviction for second-degree murder is affirmed. However, the

sentence for second degree murder is, hereby, vacated, and the case remanded for

resentencing in accordance with Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455

(2012).

CONVICTION AFFIRMED; SENTENCE VACATED AND
REMANDED FOR RESENTENCING.

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