                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #036


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 29th day of June, 2017, are as follows:


BY CLARK, J.:


2016-K-0107       STATE OF LOUISIANA v. THAYER GREEN (Parish of E. Baton Rouge)

                  For the reasons expressed herein, we hold Graham is applicable to
                  a defendant who is adjudicated and sentenced under the Habitual
                  Offender Law to life without parole for a non-homicide offense
                  committed as a juvenile.      Accordingly, we affirm defendant’s
                  convictions and amend his life sentence under the Habitual
                  Offender Law to delete the restriction on parole eligibility and
                  direct the Department of Corrections to revise defendant’s prison
                  masters according to the criteria in La. R.S. 15:574.4(D) to
                  reflect an eligibility date for consideration by the Board of
                  Parole.   Further, we remand the matter to the trial court to
                  reconsider the corrected sentence after first conducting an
                  evidentiary hearing to allow defendant the opportunity to
                  establish mitigating circumstances under State v. Dorthey, 623
                  So. 2d 1276 (1993), and State v. Johnson, 97-1906 (La. 3/4/98),
                  709 So. 2d 672, and to articulate reasons if consecutive terms
                  are imposed.
                  CONVICTIONS AFFIRMED; SENTENCE AMENDED; AND REMANDED.

                  JOHNSON, C.J., dissents in part and assigns reasons.
                  HUGHES, J., dissents for the reasons given by Johnson, C.J.




                                    Page 1 of 2
Supreme Court of Louisiana




        Page 2 of 2
06/29/2017

                          SUPREME COURT OF LOUISIANA

                                       No. 2016-K-0107

                                  STATE OF LOUISIANA

                                           VERSUS

                                      THAYER GREEN

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FIRST CIRCUIT, PARISH OF EAST BATON ROUGE


CLARK, J.
         Defendant, Thayer Green, was adjudicated a third felony offender and

sentenced under the Habitual Offender Law 1 to a term of life in prison without the

benefit of parole, probation or suspension of sentence, for a home invasion

committed as a juvenile. We granted certiorari to consider whether the United

States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct.

2011, 176 L.Ed. 825 (2010), which held the Eighth Amendment prohibits juvenile

offenders convicted of non-homicide offenses from being sentenced to life without

parole, applies to an enhanced single sentence of life in prison without parole

under the habitual offender statute.2 For the reasons that follow, we hold Graham

is, indeed, applicable to a defendant who is adjudicated and sentenced as a habitual

offender to life without parole for an offense committed as a juvenile. Therefore,

we amend defendant’s life sentence under the Habitual Offender Law to delete the

restriction on parole eligibility and direct the Department of Corrections to revise

defendant’s prison masters according to the criteria in La. R.S. 15:574.4(D) to

reflect an eligibility date for consideration by the Board of Parole. Furthermore,



1
    La. R.S. 15:529.1.
2
    State v. Thayer Green, 2016-0107 (La. 2/24/17), _____ So. 3d _____.
                                                 1
we remand the matter to the trial court for further proceedings consistent with this

opinion.


                      FACTS AND PROCEDURAL HISTORY

      The record indicates that the 17-year-old victim, K.L., and the 17-year-old

defendant, who had dated previously and had a child together, had been

communicating by text messages in the days preceding the offense on July 10,

2012. Early that morning, K.L. was sitting with a male friend in his car, which was

parked at the apartment complex where she was staying with her cousin, Jessica

Williams. Ms. Williams’s younger sister, R.W., was also staying at the apartment.

      While in her friend’s car, K.L. saw the defendant circle the parking lot in his

mother’s Toyota Camry. To avoid a confrontation, she exited the car and ran to her

cousin’s second-floor apartment. Defendant stopped, left his vehicle running, and

pursued her.

      Once inside, K.L. tried to shut the door but defendant pushed in, knocking

her to the floor. He then grabbed K.L. by the hair and punched her. K.L. screamed

and told R.W., who had been sleeping on the couch, to call police. Defendant

continued to punch, kick and choke K.L., and then grabbed a metal candlestick and

struck her about the face and head. Ms. Williams, who had been asleep in her

bedroom, was awakened by screams and hid in a closet to call 911. When she

emerged from her room and told the defendant that she had called 911, he grabbed

R.W.’s cell phone from her hand and fled. The police apprehended defendant

shortly thereafter.

      Defendant was charged with three counts: (1) home invasion, La. R.S.

14:62.8; (2) armed robbery, La. R.S. 14:64; and (3) aggravated battery, La. R.S.

                                         2
14:34. On the second day of trial, the state disclosed that it had downloaded

approximately 635 pages of text messages, which were extracted from the

defendant’s cell phone and contained numerous text messages exchanged between

him and K.L. from April 12, 2012, through July 10, 2012, the date of the offenses.

The trial court delayed the start of trial to give defense counsel time to review the

messages, but denied defendant’s motion for mistrial based on the late disclosure.

       Following trial, the jury found defendant guilty as charged of home invasion,

and returned the responsive verdicts of guilty of simple robbery and guilty of

second degree battery. The trial court denied defendant’s motions for post-verdict

judgment of acquittal and new trial, revoked his probation for two prior felony

convictions, and sentenced him to ten years imprisonment at hard labor as to the

home invasion count, and to four years imprisonment at hard labor each for the

simple robbery and second degree battery convictions. The trial court ordered the

sentences to run consecutively.

       The state sought to enhance the sentence for the home invasion conviction

by filing a habitual offender bill of information. 3 Defendant filed a written denial

and moved to quash the multiple bill, arguing the two predicate convictions were

entered on the same date in 2012. Following a hearing, the trial court adjudicated

defendant a third felony offender and resentenced him on count one to life

imprisonment at hard labor without benefit of parole, probation, or suspension of

sentence. The trial court subsequently denied the defendant’s motion to reconsider

sentence on excessiveness grounds.



3
 In charging defendant as a third felony offender, the state relied upon his April 18, 2012 guilty
plea to simple burglary in the 19th JDC, for an offense committed on August 15, 2011, and his
April 18, 2012 guilty plea to simple robbery in the 19th JDC, for an offense committed on
December 2, 2011.
                                               3
       Defendant appealed. The court of appeal, in an unpublished opinion,

affirmed defendant’s convictions, habitual offender adjudication, and sentences.

State v. Green, 15-0308 (La. App. 1 Cir. 12/17/15) (McClendon, J., dissents in part

with reasons). Judge McClendon dissented from the majority’s refusal to address

whether the life sentence without parole under the habitual offender statute violates

Graham.

       The defendant applied for a writ of certiorari seeking a review of his

convictions and sentences.

                                        DISCUSSION

       Defendant raises two assignments of error, encompassing three specific
                                                                     4
issues: (1) disclosure of exculpatory evidence/Brady                     violation; (2) illegal

sentences; and (3) excessive sentences. We will consider each issue separately.

Disclosure of exculpatory evidence/ Brady violation

       The defense and the state dispute the significance and impact of the state’s

late disclosure, during voir dire, of the text messages exchanged between defendant

and K.L. that the state obtained from defendant’s cell phone. Defendant

unsuccessfully moved for a mistrial, and later for a new trial, based on the late

disclosure. Specifically, he claimed the messages should have been disclosed as

exculpatory and/or impeachment material because some would have shown the

victim had lied to the police when she said she had texted defendant before he

arrived to tell him not to come over.




4
  In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed 2d 215 (1963), the United States
Supreme Court held that the suppression by the prosecution of evidence favorable to the accused
after receiving a request for it violates a defendant’s due process rights where the evidence is
material either to guilt or punishment, without regard to the good or bad faith of the prosecution.
Id., 373 U.S. at 87, 83 S.Ct. at 1196-97.
                                                 4
      The state’s suppression of evidence favorable to the accused violates due

process if the evidence is material either to guilt or punishment, without regard to

the good or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-

97. The Brady materiality inquiry is not “whether the defendant would more likely

than not have received a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial resulting in a verdict worthy

of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131

L.Ed. 2d 490 (1995). Pertinent here, the late disclosure of such evidence may also

require a reversal if the timing significantly impacted the defendant’s opportunity

to effectively utilize the material. State v. Kemp, 00-2228, pp. 7-9 (La. 10/15/02),

828 So.2d 540, 545-46. However, a defendant shows no entitlement to relief if the

information was available to him through other means by the exercise of

reasonable diligence. See generally United States v. Newman, 849 F.2d 156, 161

(5th Cir. 1988) (government not obligated to furnish defendant with information he

already has or can obtain with reasonable diligence); see also State v. Hobley, 99-

3343, p. 25 n.10 (La. 12/8/99), 752 So.2d 771, 786 (“There is no Brady violation

where a defendant knew or should have known the essential facts permitting him to

take advantage of any exculpatory information, or where the evidence is available

from another source, because in such cases there is really nothing for the

government to disclose.”) (quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998)).

      The record indicates that defendant filed a motion for new trial on the

ground that the trial court committed prejudicial error when it refused to grant a

mistrial based on the late disclosure. Defense counsel learned of the state’s

possession of the text messages just before trial, on June 23, 2013, when counsel

was informed by the defendant’s family that the cell phone may contain helpful

                                         5
messages but had been seized by the prosecution from among the defendant’s

possessions at the jail. In response to counsel’s inquiry about the phone’s

whereabouts, the state made all 635 pages available, and the trial court granted the

defense a half-day recess to review them. The trial court then excluded the actual

text messages from trial on the ground that their admission would have the effect

of permitting defendant to testify without having to take the stand, but permitted

defense counsel to read selected passages of the victim’s messages to defendant

during the pertinent time (without defendant’s responses). The motion for new trial

asserted the late disclosure constituted prejudicial error because the excluded

messages were exculpatory on the home invasion count in that the “overall

message from the victim on the night of the alleged incident was for [defendant] to

come over to the victim’s house,” though she told police that she had ultimately

asked him not to come over.

      In his brief to this court, defendant maintains the late disclosure caused

undue prejudice because, without adequate time to review all the messages, his

trial counsel was unable to use them to “present a more thorough defense” to the

home invasion count by showing that the victim had “demand[ed] that he come

[over],” and lied to police when she denied having asked him to visit. D. Br., p. 8;

see also R., Vol. 1, p. 83. Defendant claims the omitted messages would have

undermined K.L.’s credibility by showing she was manipulative and had

“authorized” him to enter the apartment.

      The state counters that the lower courts correctly rejected this claim because:

the messages were made available to the defense, and the record contains nothing

to indicate that defendant himself could not have obtained them earlier by

exercising reasonable diligence; thus, there was no suppression. Further, defendant

                                           6
can show no prejudice because defense counsel effectively utilized information

from the text messages at trial. Finally, the state asserts the court of appeal

correctly found all of the text messages unreviewable because neither party

introduced them at trial.

      While we agree with the state that the court of appeal did not err in finding

that all 635 pages were not subject to review because they were not introduced into

evidence, we find the court erred in declining to entertain the arguments and

evidence offered in the trial court in litigating the defendant’s motions for mistrial

and new trial. Cf. La.C.Cr.P. art. 841. Nevertheless, we conclude both lower courts

reached the correct result in rejecting this claim.

      Though a late disclosure of favorable evidence may give rise to a

meritorious Brady claim, defendant shows no entitlement to relief on this basis.

The defense filed a motion for discovery and inspection of evidence, pursuant to

La. C.Cr.P. art. 716, et seq., on August 21, 2012. The state responded on October

30, 2012, by providing copies of the police report and photographic evidence and

asserting that “[a]ny other evidence may be viewed by appointment” with the

district attorney’s office. The record also indicates the state gained possession of

the text messages from defendant’s phone thereafter, on November 8, 2012, over

six months before trial.

      Defendant cannot show that the trial court abused its discretion in rejecting

this Brady claim, given the messages were available to the defense through the

exercise of reasonable diligence. Defendant’s belief that his own phone contained

helpful messages was certainly known to him at the time of his arrest, and the

defense fails to explain why they waited until the eve of trial to attempt, for the

first time, to retrieve and examine the messages. Reasonable diligence would have

                                           7
entailed defense counsel specifying that the text messages were an intended target

of discovery and, after receiving the state’s response with the open invitation to

view any other evidence by appointment, counsel making an appointment to

review the messages. Notwithstanding the state’s failure to inform the defense

when it obtained the phone’s contents, defendant could have sought to obtain the

messages of which he was aware and of which he claims would have materially

bolstered his defense. Instead, he asserts he had an absolute right to discovery of

his own conversations, whether or not the state intended to use them at trial, and

fails to justify his failure to exercise that right sooner.

       Further, setting aside the fact that not all 635 pages were admitted, we note

that the messages within those voluminous pages were arranged chronologically

from April 12, 2012, through the date of the offenses, July 10, 2012. See R., Vol.

1, p. 89. Among those several pages, just 250 text messages were sent or received

on the relevant dates (July 9th and 10th) between defendant and the victim. Id.

Thus, anyone with knowledge of the defendant’s communications, i.e., the

defendant himself or his attorney, would have been capable of identifying and

assessing the relevant messages within the limited time afforded the defense at the

start of trial. Under these circumstances, we agree with the lower courts that

nothing was improperly withheld. Cf. Newman, 849 F.2d at 161, supra

(government not obligated to furnish information defense can obtain with

reasonable diligence).

       Defendant also admits that he has since had ample time to review all the

messages. Yet he fails to specify any unused messages, let alone show how they

would have affected jurors’ evaluation of the evidence. Rather, he merely offers a

vague assertion that some unused messages would have shown “he had no intent to

                                             8
enter the house or harm anyone” and that the victim concocted her accusations.

Because he fails to show that any omitted messages were anything other than

cumulative of what defense counsel was permitted to read and argue to jurors, and

elicit in cross-examination of the victim, he cannot show that he was denied

verdicts worthy of confidence in their absence. Kyles, 514 U.S. at 434, 115 S.Ct. at

1566. 5

Illegal sentences

         Next the parties dispute the legality of defendant’s sentences. At issue is the

legality of the habitual offender life sentence for defendant, who was 17 years old

at the time of the offenses. Defendant was adjudged and punished as a third-felony

offender pursuant to La. R.S. 15:529.1(A)(3)(b), 6 which calls for mandatory life

imprisonment.

         In Graham, the Supreme Court held that the Eighth Amendment prohibits a

sentence of life without parole for a juvenile offender who has not committed a

homicide and requires the government to ensure that such offenders have a

meaningful opportunity for release based on demonstrated rehabilitation and

5
 The defendant compares his case with State v. Bright, pp. 7-8, 02-2793 (La. 5/25/04), 875 So.2d
37, 42-43, in which the defendant was entitled to relief as a result of the suppression of evidence
impeaching the sole eyewitness linking the defendant to the crime, and argues he is similarly
entitled to relief because, as in Bright, nothing but eyewitness accusations established his guilt.
In Bright the state suppressed the star witness’s rap sheet and jurors therefore did not learn that
he had a simple burglary conviction and was on parole at the time of the offense and when he
identified Bright from a photo lineup. Unlike in Bright, however, because defendant here has
failed to show that anything in the text messages omitted from trial would have materially
undermined the victim, he shows no grounds to disturb his convictions.
6
    La. R.S. 15:529.1(A)(3)(b) provides:

         If the third felony and two prior felonies are defined as a crime of violence under
         R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is
         under the age of [18] at the time of commission of the offense, or as a violation of
         the Uniform Controlled Dangerous Substances Law punishable by imprisonment
         for ten years or more, or any other crimes punishable by imprisonment for twelve
         years or more, or any combination of such crimes, the person shall be imprisoned
         for the remainder of his natural life, without benefit of parole, probation, or
         suspension of sentence.
                                                   9
maturation. We find two prior decisions from this court, applying Graham,

partially instructive, though neither dealt with a habitual offender life sentence as

in the instant case. In State ex rel. Morgan v. State, 15-0100 (La. 10/19/16), ___

So.3d ___, this court found Morgan’s 99-year sentence for one count of armed

robbery an effective life sentence which violated Graham. Prior to Morgan, this

court held in State v. Brown, 12-0872 (La. 5/7/13), 118 So.3d 332, that Graham

did not preclude imposition of cumulative sentences which in the aggregate match

or exceed life expectancy for a juvenile convicted of multiple non-homicide

offenses.

      In Brown, a 16-year-old defendant was convicted of aggravated kidnapping

and four counts of armed robbery, all stemming from the same episode, and

sentenced to consecutive terms of life without parole and four 10-year terms (also

without parole), respectively. Id., 12-0872, p. 3, 118 So.3d at 333-34. The trial

court in Brown found the life sentence squarely within Graham’s purview and

therefore deleted the parole prohibition for that term; it also deleted the parole

prohibitions for Brown’s four remaining 10-year terms so as to effectuate

Graham’s holding. On review, this court left Brown’s actual life sentence with

parole eligibility intact, as amended, but reversed the trial court with respect to its

amendment of the four 10-year terms and reinstated the parole prohibitions, having

concluded that Graham does not affect term-of-year sentences imposed for

multiple offenses (even if in the aggregate they match or exceed life expectancy).

Id., 12-0872, p.15, 118 So.3d at 341. The court found that Brown’s consecutive

sentences created a “complication” which eliminated any meaningful possibility of

parole. Id., 12-0872, p. 14, 118 So.3d at 341. Thus, the Louisiana jurisprudence

interpreting Graham thus far concludes that Graham provides parole eligibility for

                                          10
defendants with: (1) actual life sentences, see Brown and see also State v. Shaffer,

11-1756 (La. 11/23/11), 77 So.3d 939 (appropriate remedy for sentences of life

without parole under Graham is to delete parole eligibility restriction); and (2) a

single term-of-years sentence which, standing alone, constitutes an “effective” life

sentence. See Morgan. Until now, there has been no Louisiana case addressing

whether an actual life sentence imposed pursuant to the Habitual Offender Law is

distinguishable from other life sentences under Graham.

       Defendant argues no reason exists—either within Graham or this court’s

decisions—to view his life sentence under the Habitual Offender Law as beyond

Graham’s reach. He characterizes the instant offenses as a prime example of the

transient traits of youth (impulsivity, immaturity, overreacting) which underpin

Graham’s categorical ban. Defendant also argues that nothing in Graham indicates

a sentence of life without parole is permissible even for a juvenile non-homicide

offender being punished as a recidivist. Rather, defendant maintains his sentence

must afford a meaningful opportunity for release, and contends the trial court

abused its discretion by ordering his sentences to run consecutively because his

offenses arose from one episode.

       In response, the state compares the habitual offender life sentence here to the

multiple term-of-years sentences meted out in Brown, because in both cases the

punishments are attributable to the respective defendant’s commission of numerous

offenses. Citing federal jurisprudence, 7 the state asserts that courts have found

Graham does not “question the constitutionality of using prior juvenile convictions

to enhance the sentence for a crime committed as an adult.” Noting the dearth of


7
  See generally United States v. Orona, 724 F.3d 1297, 1308 (10th Cir. 2013)(citing United States
v. Banks, 679 F.3d 505 (6th Cir. 2012) and United States v. Scott, 610 F.3d 1009, 1018 (8th Cir.
2010)).
                                               11
Louisiana jurisprudence applying Graham to habitual offender sentences, the state

concedes that the Department of Corrections may treat the defendant’s life

sentence as parole-eligible in accordance with La. R.S. 15:574.4, which was

enacted in response to the Graham decision.

      The court of appeal majority found the Graham issue was not properly

before it. It construed defendant’s argument as a challenge to the constitutionality

of the Habitual Offender Law sentencing provision, and not as a challenge to the

legality of the sentence pursuant to Graham. See Green, 15-0308, p. 13. As Judge

McClendon expressed in her dissent, however, this claim is better construed as a

Graham illegal sentence claim which may be reviewed any time under La. C.Cr.P.

art. 882. Green, 15-0308, p. 1 (McClendon, J., dissenting).

      A review of Graham’s underlying rationale reveals no basis upon which to

treat a habitual offender life sentence any differently than the sentences in Shaffer,

Brown, and Morgan, supra, where this court found Graham applies. The Supreme

Court’s decision in Graham was founded on the notion that juvenile non-homicide

offenders, because of their youth and greater capacity for reform, are significantly

less culpable than adults who have committed the same or worse offenses, and

therefore deserve different treatment at sentencing. Graham, 560 U.S. at 68-69,

130 S.Ct. at 2026-27. In finding life without parole an unconstitutional punishment

for a juvenile non-homicide offender, the Court held that states must give such an

offender a “meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation” and must not make any judgment at the outset that he

will never be fit to rejoin society. Id., 560 U.S. at 74, 130 S.Ct. at 2030.

      With these concepts in mind, we find the state fails to distinguish

defendant’s habitual offender life sentence from an unenhanced life sentence or an

                                           12
effective life sentence. In addition, we find the state erroneously relies on federal

jurisprudence holding Graham does not foreclose the use of prior convictions for

offenses committed by a juvenile to enhance the punishment for a subsequent

offense committed as an adult (see n.8 infra). Here, defendant’s single enhanced

life sentence as a habitual offender was imposed for an offense committed as a

juvenile. Thus, we conclude Graham is applicable to defendant’s life sentence

imposed pursuant to the Habitual Offender Law. Therefore, we hold defendant’s

enhanced sentence as a third felony offender to life imprisonment without parole

for the home invasion committed as a juvenile is illegal under Graham and can be

corrected at any time pursuant to La. C.Cr.P. art. 882.8

       Defendant also claims the trial court erred in imposing consecutive terms for

his two remaining four-year terms because the three instant offenses occurred

during the same episode.

       Regarding the imposition of consecutive sentences, La. C.Cr.P. art. 883

provides:

       If the defendant is convicted of two or more offenses based on the
       same act or transaction, or constituting parts of a common scheme or
       plan, the terms of imprisonment shall be served concurrently unless
       the court expressly directs that some or all be served consecutively.
       Other sentences of imprisonment shall be served consecutively unless
       the court expressly directs that some or all of them be served
       concurrently. In the case of the concurrent sentence, the judge shall
       specify, and the court minutes shall reflect, the date from which the
       sentences are to run concurrently.




8
 Although an illegal sentence “is primarily restricted to those instances in which the term of the
prisoner’s sentence is not authorized by the statute or statutes which govern the penalty,” State v.
Mead, 2014-1051, p.3 (La. App. 4 Cir. 4/22/15), 165 So. 3d 1044, 1047, in Montgomery v.
Louisiana, 577 U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the United States Supreme
Court reiterated that a substantive rule of constitutional law, such as that introduced in Graham,
is reviewable at any time.
                                                 13
As explained in State v. Walker, 00-3200, p. 1 (La. 10/12/01), 799 So.2d 461, 461–

62:

       Although La.C.Cr.P. art. 883 favors imposition of concurrent
       sentences for crimes committed as part of the same transaction or
       series of transactions, a trial court retains the discretion to impose
       consecutive penalties in cases in which the offender’s past criminality
       or other circumstances in his background or in the commission of the
       crimes justify treating him as a grave risk to the safety of the
       community.

Here, defendant’s conduct transpired within a very short period at one location.

Thus, we find the presumption in favor of concurrent sentences applies, and the

issue is whether the trial court abused its discretion by imposing consecutive terms.

Absent well-articulated reasons from the sentencing court, we decline to say

whether it was an abuse of discretion to impose consecutive terms. Thus, we will

remand the matter to the trial court to consider whether defendant indeed poses a

grave risk to public safety and, at a minimum, to articulate reasons for the

consecutive terms. 9

Excessive Sentences

       Finally, defendant and the state dispute whether a life sentence, even with

parole eligibility under Graham, is excessive in this case. After being sentenced as

a third offender, defendant filed a motion for reconsideration of sentence on

excessiveness grounds, which the trial court denied without reasons.


9
  See generally State v. Baham, 14-0653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558 (if trial court
elects to impose consecutive sentences for single course of conduct, it
must articulate its reasons), writ denied, 15-0040 (La. 3/24/16), 190 So.3d 1189; see also State v.
Brown, 15-0096 (La. App. 5 Cir. 9/15/15), 173 So.3d 1262 (same); State v. Harris, 11-0626 (La.
App. 5 Cir. 11/27/12), 105 So.3d 914 (same); State v. Blanchard, 03-0612 (La. App. 5 Cir.
11/12/03), 861 So.2d 657 (same); cf. State v. Cornejo-Garcia, 11-0619 (La. App. 5 Cir. 1/24/12),
90 So.3d 458 (if trial court elects to impose consecutive sentences for single course of conduct, it
must articulate its reasons, though failure does not require remand if the record provides an
adequate factual basis to support the consecutive sentences). Because the record does not
contain an adequate basis for the trial court’s decision here, a remand for articulation of reasons
is necessary.
                                                 14
      In exceptional circumstances, the statutory minimum or mandatory sentence

has been found to violate the constitutional protection against excessive

punishment. State v. Johnson, 97-1906, p. 8 (La. 3/4/98), 709 So.2d 672, 677;

State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993). Under Louisiana

jurisprudence, a habitual offender sentence is excessive when it imposes a

punishment grossly disproportionate to the severity of the offense or constitutes

nothing more than a needless infliction of pain and suffering. See Dorthey, 623

So.2d at 1280-81 (sentence review is within the judiciary’s province and if “the

punishment mandated by [La.] R.S. 15:529.1 makes no ‘measurable contribution to

acceptable goals of punishment’ or [] the sentence amount[s] to nothing more than

the purposeful imposition of pain and suffering and is grossly out of proportion to

the severity of the crime[, the trial judge] has the option, indeed the duty, to reduce

such sentence to one that would not be constitutionally excessive.”) (footnote

omitted); see also State v. Bonanno, 384 So.2d 355, 357 (La. 1980). But a trial

judge may depart downward from the mandatory minimum only if it finds clear

and convincing evidence to rebut the presumed constitutionality of the mandatory

minimum. State v. Lindsey, 99-3256, p. 5 (La. 10/17/00), 770 So.2d 339, 343. In

applying this jurisprudence, a reviewing court has the duty to carry out its mandate

under La. Const. art. I, § 20 by remanding if the defendant has presented “a

substantial possibility that his complaints of an excessive sentence [have] merit.”

State v. Wimberly, 414 So.2d 666, 672 (La. 1982).

      Defendant contends that imposition of the statutorily-mandated life sentence

serves no worthy legislative goal and that a downward departure is necessary to

align the circumstances with the punishment. To rebut the presumption of the

constitutionality of the sentence and demonstrate his exceptional nature, defendant

                                          15
asks this court to consider his background, including his youth, family ties, health,

employment history, and criminal record, along with the circumstances of the

crimes. According to defendant, the record indicates that he had been working the

night of the incident; the victim’s injuries were superficial; he and the victim have

a young son together; he had been on probation for just a few months for the two

prior offenses; and he had never served any jail time nor received rehabilitative

services before being sentenced here. 10 Defendant asserts that, in the event we

hold Graham applies to his case, and we do, the lengthy sentence he will be

required to serve before becoming parole-eligible is grossly disproportionate to the

severity of his offenses. The state counters that defendant failed to show he is an

exceptional offender for whom the lengthy sentence is excessive.

       As previously mentioned, the evidence shows defendant and K.L. possessed

the immature brains that Graham and its progeny found so different from adult

brains with respect to the critical considerations of culpability and personal control.

We find defendant’s youth only amplifies the other apparent mitigating factors. 11



10
   Defendant asserts it is relevant to the excessive sentencing inquiry whether he previously
served prison time and/or made a concerted effort at rehabilitation, citing State v. Ross, 2015-
1113 (La. App. 4 Cir. 12/21/16), 207 So. 3d 511. Defendant received probation in April 2012 for
the two prior felonies used as predicate offenses for the purpose of the multiple bill and claims
he was “barely enrolled in the probation system at the time of this incident,” in early July 2012.
D. Br. 26. He further argues that “[w]here there has been no graduated sentencing and no shock
of real incarceration previously, imposing a life sentence plus [eight] years, even with parole
[after 38 years], as a juvenile’s first incarceration is particularly traumatic, excessive, and not
within the goals of the multiple bill statute[].” Id.
11
   Although not in evidence, defendant submitted, in the appendix of his writ application, an
affidavit obtained from K.L. while his appeal was pending in the First Circuit Court of Appeal.
Briefly, the sworn statement indicates K.L., a juvenile at the time, felt pressure to embellish her
account of the incident and harbors regret for her own personal conduct and the harsh outcome of
the case. Despite the strong suspicion courts generally have about recantations, see State v.
Clayton, 27 So. 2d 827, 833 (La. 1982), in this matter, we find the statements within the affidavit
from K.L., if properly admitted into evidence and found to be truthful, may be probative
regarding sentencing because these statements could be consistent with some of her behavior
during trial. For example, Angela Green, the defendant’s mother, testified that K.L. told her via
text that she “got to play the game” but assured her that she had changed and embellished her
story so much that “[t]hey ain’t going to be able to put them together,” suggesting K.L. believed
                                                16
       In addition, penalties in other domestic abuse12 cases contrast significantly

with the outcome here. For example, in State v. Clanton, 06-0008 (La. App. 1 Cir.

7/10/06) (unpub’d), writ granted in part, 06-1993 (La. 6/15/07), 958 So.2d 1179

(remanding for sentence clarification), the defendant was convicted of, inter alia,

two counts of domestic abuse battery and sentenced to just six months in parish jail

for each, with the sentences to run concurrently, in a case in which the victim

testified that during an altercation in which he bit and bruised her, defendant also

grabbed and threw their four-year-old son in the apartment they shared. Similarly,

in State v. Vesey, 07-1029 (La. App. 3 Cir. 9/11/07) (unpub’d), writ denied, 07-

2017 (La. 6/6/08), 983 So.2d 916, the defendant was found guilty of, inter alia,

domestic abuse battery and sentenced to a suspended term of six months in parish

jail with 24 months of supervised probation, where the evidence showed that he

had kicked and punched his wife in the stomach. The juvenile defendant here was

sentenced to life imprisonment, albeit as a recidivist, for circumstances involving

substantially the same or similar conduct by the adult offenders in Clanton and

Vesey.



the jury would not be able to return guilty verdicts. Ultimately, because the affidavit is not in
evidence, we express no opinion regarding its probative value.
12
   Notwithstanding the verdicts here (home invasion, simple robbery, second degree battery), the
state did not dispute defendant’s use of the term “domestic abuse” to describe the evidence, and
we find no reasonable basis to dispute that the circumstances in fact closely resemble domestic
abuse, given defendant and K.L. were romantically involved, had a child together, and the
impetus for defendant’s outrage was his adolescent jealously over K.L.’s involvement with
another young man.

Moreover, though defendant was punished as a third offender and sentenced to life for home
invasion, we find no reason to view that count and its sentence as meaningfully isolated from
what transpired after he pushed his way into the apartment. Compare La. R.S. 14:35.3 (domestic
abuse battery is “the intentional use of force or violence committed by one household member
upon the person of another household member without the consent of the victim,” which is
punishable as a misdemeanor for a first offense by between 30 days and six months in jail with at
least 48 hours without parole) with La. R.S. 14:34.1 (second degree battery is a battery
committed when the defendant intentionally inflicts serious bodily injury; punishable as a felony
with a sentence of up to eight years at hard labor).
                                                 17
      Considering the totality of the circumstances, including defendant’s youth,

and the relative harshness of defendant’s sentences as compared to other

defendants convicted of harming their romantic partners in domestic disputes, we

conclude defendant has presented “a substantial possibility that his complaints of

an excessive sentence [have] merit,” see Wimberly, 414 So.2d at 672, and thereby

triggered this court’s duty under La. Const. art. I, § 20 to remand for a hearing at

which defendant will be permitted to present mitigating evidence to show that his

life sentence is excessive and for re-sentencing in accord with the prohibition

against excessive punishment. See Bonanno, 384 So.2d at 357; cf. State v. Mosby,

14-2704 (La. 11/20/15), 180 So.3d 1274 (30-year habitual offender sentence for

72-year-old, non-violent offender deemed “grossly out of proportion to the

severity” of the offense and therefore unconstitutionally excessive).

                                      DECREE

      For the reasons expressed herein, we hold Graham is applicable to a

defendant who is adjudicated and sentenced under the Habitual Offender Law to

life without parole for a non-homicide offense committed as a juvenile.

Accordingly, we affirm defendant’s convictions and amend his life sentence under

the Habitual Offender Law to delete the restriction on parole eligibility and direct

the Department of Corrections to revise defendant’s prison masters according to

the criteria in La. R.S. 15:574.4(D) to reflect an eligibility date for consideration by

the Board of Parole. Further, we remand the matter to the trial court to reconsider

the corrected sentence after first conducting an evidentiary hearing to allow

defendant the opportunity to establish mitigating circumstances under State v.

Dorthey, 623 So. 2d 1276 (1993), and State v. Johnson, 97-1906 (La. 3/4/98), 709

So. 2d 672, and to articulate reasons if consecutive terms are imposed.

                                          18
CONVICTIONS AFFIRMED; SENTENCE AMENDED; AND REMANDED.




                         19
06/29/2017

                        SUPREME COURT OF LOUISIANA

                                   NO. 2016-K-0107

                               STATE OF LOUISIANA

                                       VERSUS

                                  THAYER GREEN

    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST
            CIRCUIT PARISH OF EAST BATON ROUGE


JOHNSON, C.J. dissents in part and assigns reasons.
         I respectfully dissent from the majority’s rejection of defendant’s Brady

claim.

         The underlying story of this case involves two impetuous teenagers, the

defendant and K.L., who had a previous romantic relationship and shared a child

together. The two were immature teens, and their relationship was apparently up and

down and consisted of frequent arguing and manipulation. On the night of July 10,

2012, defendant drove to K.L.’s residence only to find her with another male in the

parking lot. Defendant entered K.L.’s apartment where a struggle ensued and

defendant left the apartment taking a cell phone. Defendant was eventually charged

with home invasion, armed robbery and aggravated battery.

         On the second day of defendant’s trial, the state disclosed for the first time

that it had seized defendant’s cell phone months earlier and had downloaded all of

the text messages. The state then disclosed to the defendant 635 pages of text

messages which had been extracted from defendant’s cell phone. Defendant

unsuccessfully moved for a mistrial (and later a new trial) based on the late

disclosure of the text messages. The jury eventually found defendant guilty on the

home invasion charge, and returned responsive verdicts of simply robbery and

second degree battery.



                                            1
      In my view, the state’s late disclosure of the text messages constitutes a clear

Brady violation. The state’s suppression of evidence favorable to the accused

violates due process if the evidence is material either to guilt or punishment, without

regard to the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83,

87 (1963). The late disclosure of such evidence may also require a reversal if the

timing significantly impacted the defendant’s opportunity to effectively utilize the

material. State v. Kemp, 00-2228 (La. 10/15/02), 828 So. 2d 540, 545-46. There is

no doubt the text messages contained exculpatory evidence, specifically related to

defendant’s guilt as to the home invasion charge, and thus were required to be

disclosed to the defendant pursuant to Brady. Moreover, because these messages

were not disclosed until the second day of trial, defendant was not able to effectively

use this evidence in his defense, requiring a reversal of his conviction.

      The narrative of what happened on July 10, 2012, is told through the text

messages between defendant and K.L. The text messages suggest K.L. orchestrated

the events of that night by toying with defendant and inviting him to her residence

when she was there with another boyfriend. K.L. told police that she advised

defendant she did not want him to come over or to see him, but the text messages

sent by K.L. show otherwise. The texts establish K.L.’s pattern of manipulation of

the defendant, wherein she repeatedly enticed defendant to come over to her

residence. K.L.’s credibility was called into question when she testified that despite

what was said in the text messages, she did not really want the defendant to come

over, that she was just being sarcastic and joking with him, and she was playing with

his mind to see what he was going to do.

      These text messages were exculpatory on the home invasion charge because

they demonstrate K.L. wanted and invited defendant to come to her residence on the

night of July 10, 2012. The messages were central to the defense that there was no

“unauthorized” home invasion because K.L. invited defendant to her residence.

                                           2
      The state’s failure to timely disclose the exculpatory evidence impacted the

fundamental fairness of the prosecution as it denied defendant his right to a fair trial

and due process of law. The defendant did not have access to the texts while

conducting voir dire, an essential element of trial, and was further prevented from

adequately preparing his defense, particularly as to the home invasion count. The

texts confirm the defendant was invited to K.L.’s residence and support the physical

evidence that there was no forced entry. Had the defendant been given sufficient

time to prepare his defense based on the texts obtained by the state, he could have

fully impeached K.L.’s testimony, which was critical to the state’s case.

      Further, I disagree with the majority’s finding that the district court did not

abuse its discretion in rejecting the Brady claim because the text messages were

available to the defense through the exercise of reasonable diligence. In this case,

defendant specifically requested impeachment and exculpatory evidence from the

State on August 21, 2012, but was never informed when the texts were obtained.

Additionally, the defendant was actively looking for his phone, knowing that it held

crucial evidence for his defense. The defense was never told that the state had

possession of defendant’s phone or that a search warrant had been secured for the

phone and access to the information on the phone.

      The text messages contained concrete exculpatory evidence, specifically

relating to the home invasion charge. The late disclosure of the text messages

significantly impacted the defendant’s opportunity to utilize the material and led

directly to defendant’s conviction. For these reasons, I would vacate defendant’s

conviction and remand the matter for a new trial. See Brady and Kemp, supra.




                                           3
06/29/2017

                     SUPREME COURT OF LOUISIANA

                                 No. 2016-K-0107

                            STATE OF LOUISIANA

                                     VERSUS

                               THAYER GREEN

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
         FIRST CIRCUIT, PARISH OF EAST BATON ROUGE


Hughes, J., dissents.

      I respectfully dissent for the reasons given by Johnson, C.J.




                                         1
