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State v. Guillory3/11/1998
nt made prior to or during the trial of this case.
The court notes that not all issues raised in the assignments of error are addressed in the brief and not all arguments presented in the brief are assigned as error. Moreover the Defendant has argued numerous facts or allegations of witnesses that were not presented at trial nor made part of a proffer. Thus, the factual allegations contained in Assignments of Error numbers 11(c), 11(e), 12(a), 12(b), 12(c), part of 13, plus footnotes 3, 4, 5, 6, 7, and 8 are not part of the record and should not have been argued to this court.
According to Uniform Rules, Courts of Appeal, Rule 2-12.4, assignments of error not addressed in the appellate brief may be deemed abandoned and not considered. State v. Broussard, 95-792 (La. App. 3 Cir. 12/6/95); 664 So.2d 835. Therefore, assignments of error numbers 1, 2, 6, 17 and 19 are considered abandoned and will not be addressed. Ironically, the Defendant does not address the issue of the insufficiency of the evidence although he argues throughout his brief that Jeffery Tezeno was the murderer.
The Defendant included a final "catch-all" assignment of error in number 20 Ä "Mr. Guillory reiterates and reurges every motion, objection and argument made prior to or during the trial of this case." Prior to trial, the Defendant filed over 100 motions, but in his appellate brief, the Defendant argues only three issues that were not specified as errors: Argument 1 Ä suppression of statements by the Defendant; Argument 2 Ä denial of motion to quash based upon discrimination in selection of grand jury foreman; and Argument 5 Ä suppression of fruit of illegal arrest. All three issues were the subject of pretrial writ applications and have previously been addressed by this court. Because the Defendant argued these three issues in his appellate brief, we have once again addressed them.
For ease of reference to both the Defendant's brief and the State's brief, we have organized the memorandum according to the nine arguments presented in the Defendant's appellate brief.
ARGUMENT NO. 1 Ä ASSIGNMENT OF ERROR NO. 20
The Defendant's first argument is that the trial court should have suppressed the videotaped confession and all other statements attributed to him. The basis for suppression is that the Defendant was intoxicated on cocaine at the time and he was self-destructive or suicidal. When the Defendant's court-appointed attorney visited him in jail the day after the confession, he suspected that the Defendant was high on cocaine and had the Defendant give a urine sample for testing. A test of the Defendant's urine sample given at 4:30 p.m. on the day after he made his confession revealed that it contained 355.6 nanograms of cocaine metabolites per milliliter and 65 nanograms of marijuana per milliliter. The argument presented here is identical to the issue presented in the pretrial writ application in State v. Guillory, 95-481 (La. App. 3 Cir. 6/29/95), writ denied, 95-1858, 95-1953, 95-1973, and 95-1974 (La. 9/22/95); 660 So.2d 483.
The prior denial of supervisory writs does not bar reconsideration of an issue on appeal, nor does it prevent an appellate panel from reaching a different Conclusion. State v. Fentenot, 550 So.2d 179 (La. 1989); State v. Decuir, 599 So.2d 358 (La. App. 3 Cir.), writ denied, 605 So.2d 1095 (La. 1992). In taking a second look at an issue, the appellate court may consider all pertinent evidence given at the trial. State v. Allen, 95-1754 (La. 9/5/96); 682 So.2d 713, 731 n. 2, citing State v. Burkhalter, 428 So.2d 449, (La. 1983); State v. Merchant, 490 So.2d 336, n. 2 (La. App. 1 Cir.), writ denied, 496 So.2d 326 (La. 1986). When a def
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