“the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”
How later courts described this case
- “the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”
Written by the judges who cited it.
The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
07-388
STATE OF LOUISIANA
VERSUS
ROBERT WAYNE BROWN
**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 279,245
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE
**********
GLENN B. GREMILLION
JUDGE
**********
Court composed of Jimmie C. Peters, Glenn B. Gremillion, and J. David Painter,
Judges.
AFFIRMED IN PART, REVERSED IN PART,
AND RENDERED, AND REVERSED IN PART
AND REMANDED.
James C. Downs
District Attorney
9th Judicial District Court
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
Counsel for Plaintiff/Appellee:
State of Louisiana
Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
Counsel for Defendant/Applicant:
Robert Wayne Brown
Robert Wayne Brown
ALC-Jupiter A2
3751 Lauderdale Woodyard Road
Kinder, La 70648
In Proper Person:
Robert Wayne Brown
GREMILLION, Judge.
The defendant, Robert Wayne Brown, was convicted of attempted first
degree murder, a violation of La.R.S. 14:27 & 30; terrorizing, a violation of La.R.S.
14:40.1; and possession of a firearm by a convicted felon, a violation of La.R.S.
14:95.1. The trial court sentenced him to ten years at hard labor for terrorizing,
twenty years at hard labor for attempted murder, and ten years at hard labor for
possession of a firearm by a convicted felon, with all three sentences to run
concurrently.
Defendant now appeals his convictions and sentences, assigning eleven
errors through counsel, and another four errors pro se. For the following reasons,
Defendant’s conviction and sentence for attempted first degree murder is affirmed;
his conviction for terrorizing is reversed and the sentence is vacated; his conviction
for possession of a firearm by a convicted felon is reversed and the sentence is
vacated, and the matter is remanded for further proceedings.
FACTS
On July 30 and 31, 2005, Defendant made several telephone calls to the
Alexandria Police Department threatening to shoot any officers who patrolled in his
neighborhood. He also claimed to have explosives in his house and threatened some
police officers by name. On the morning of August 1, he called for the chief of police
and left an apologetic voicemail. However, in a subsequent voice message he
renewed the threats. Later that day, Defendant became embroiled in an argument
with his next-door neighbors. He armed himself with a rifle and began firing. The
1
victims retreated inside their home. Defendant shot through a box fan mounted into
their kitchen window and wounded one of the victims, Jerry Harrell, in the shoulder.
Police responded to the scene and laid siege to Defendant’s house.
Attempts to force him out with teargas were unsuccessful, so the authorities had his
utilities cut off. Shortly after midnight, he emerged from his house, and police took
him into custody.
SUFFICIENCY OF EVIDENCE
In his first three assignments of error, Defendant argues that the evidence
that was submitted against him at trial was insufficient to support each of his three
convictions. Because each of these assignments of error involve the same or similar
issues, we shall examine them together. The analysis for such claims is well-settled:
When the issue of sufficiency of evidence is raised on appeal, the critical
inquiry of the reviewing court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d
126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983);
State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d
1212 (La.1981). It is the role of the fact finder to weigh the respective
credibility of the witnesses, and therefore, the appellate court should not
second guess the credibility determinations of the triers of fact beyond
the sufficiency evaluations under the Jackson standard of review. See
State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson,
425 So.2d 1228 (La.1983)). In order for this Court to affirm a
conviction, however, the record must reflect that the state has satisfied
its burden of proving the elements of the crime beyond a reasonable
doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
2
First Degree Murder
Defendant’s most serious conviction was for attempted first degree murder.
First degree murder is defined by La.R.S. 14:30, which states, in pertinent part:
A. First degree murder is the killing of a human being:
....
(3) When the offender has a specific intent to kill or to inflict
great bodily harm upon more than one person.
Attempt is defined by La.R.S. 14:27, which states, in relevant part:
A. Any person who, having a specific intent to commit a crime,
does or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the offense
intended; and it shall be immaterial whether, under the circumstances,
he would have actually accomplished his purpose.
Defendant argues that the State failed to prove that he had the intent to
kill any of the victims. In response, the State asserts that specific intent to kill may
be inferred from a defendant’s act of aiming and firing a weapon at another person.
State v. Burns, 98-602 (La.App. 1 Cir. 2/19/99), 734 So.2d 693, writ denied, 99-0829
(La. 9/24/99), 747 So.2d 1114.
Defendant’s neighbor, Emma Harrell, one of the victims in this case,
testified that Defendant aimed a .22-caliber rifle directly at her son, Jerry, and fired.
Mrs. Harrell testified that the shots came so close to her that she “could feel the heat.”
When Mrs. Harrell and Jerry, and Jerry’s girlfriend (his wife at the time of trial),
Adrian, got inside their house, Jerry moved toward his mother, and a bullet hit him
in the upper arm.
As we have noted, on direct examination, Mrs. Harrell testified that
Defendant shot at her son, but the bullets came close to her. However, at the
3
beginning of cross-examination, she stated that Defendant aimed at her and her son.
Jerry testified that it was difficult to state exactly at whom Defendant was aiming
because Jerry, his mother, and his girlfriend were less than an arm’s length from one
another. Adrian testified that Defendant shot at Jerry and also at Mrs. Harrell.
Further, Mrs. Harrell testified that at one point Defendant told her, “Emma, if you
don’t get out of the way, the next bullet is going to be yours.”
Based on that evidence, we look to the case of State v. Smith, 31,955, pp.
10-11 (La.App. 2 Cir. 5/5/99), 740 So.2d 675, 682, writ denied, 00-1404 (La.
2/16/01), 785 So.2d 840, which has a similar scenario to the instant case:
Finally, the defendant contends that the state did not prove
specific intent. Specific criminal intent is defined as “that state of mind
which exists when the circumstances indicate that the offender actively
desired the prescribed criminal consequences to follow his act or failure
to act.” La. R.S. 14:10(1). Specific criminal intent need not be proven
as a fact, but may be inferred from the circumstances of the transaction
and the actions of the defendant. State v. Williamson, 27,871 (La.App.
2d Cir.4/3/96), 671 So.2d 1208, writ denied, 96-1143 (La.10/4/96), 679
So.2d 1380; State v. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526; State
v. Johnson, 27,522 (La.App.2d Cir.12/6/95), 665 So.2d 1237.
It is clear that the specific intent that is needed to support the
defendant’s conviction for first degree murder was established by the
defendant taking a loaded assault rifle and shooting it multiple times
into a house full of children, killing miraculously only one person. The
defendant told the police he knew that the Cadillac containing the
individuals who had shot at him earlier left the premises of the Johnson
residence before he and Pickrom arrived with a loaded gun. The
defendant admitted that he knew several children between the ages of 10
to 17 lived in that house. He also conceded that when he and Pickrom
arrived at the house, no one was in the front yard, but he saw a light on
inside of the house. The defendant clearly had specific intent. State v.
Butler, 618 So.2d 572 (La.App. 2d Cir.1993), writ denied, 624 So.2d
1226 (La.1993).
The reasoning of Smith applies to this case. Defendant aimed and fired
at three people who were close together and continued to fire as they fled into the
4
house. Although Defendant’s comment to Mrs. Harrell that she should get out of the
way suggests he initially intended to shoot only Jerry, the same comment, combined
with Mrs. Harrell’s refusal to step aside, and Defendant’s act of continuing to shoot,
demonstrated that he had the specific intent to kill or inflict great bodily harm upon
multiple victims.1 Therefore, we find that there was sufficient evidence presented by
the State to prove attempted first degree murder and that any rational trier of fact
could have found that the essential elements of that crime were proven beyond a
reasonable doubt. Accordingly, this assignment of error has no merit.
Terrorizing
La.R.S. 14:40.1 defines terrorizing as:
[T]he intentional communication of information that the commission of
a crime of violence is imminent or in progress or that a circumstance
dangerous to human life exists or is about to exist, with the intent of
causing members of the general public to be in sustained fear for their
safety; or causing evacuation of a building, a public structure, or a
facility of transportation; or causing other serious disruption to the
general public.
(Emphasis added).
James Hay, the assistant chief of police, testified that on July 30, 2005,
other officers consulted him regarding threatening calls from Defendant. Hay further
testified that he was informed that Defendant called the Alexandria Police
Department and threatened to kill any officer that patrolled in his neighborhood and
1
We note that Mrs. Harrell also testified that “I could tell he wasn’t his self because he was
stumbling [sic].” However, the record does not indicate that Defendant lacked the capacity to form
the mens rea necessary for attempted first degree murder. “Louisiana does not recognize the doctrine
of diminished capacity. Therefore, a mental defect or disorder short of legal insanity cannot serve
to negate specific intent[.]” State v. Bell, 543 So.2d 1013, 1019 (La.App. 3 Cir. 1989), citing State
v. Pravata, 522 So.2d 606, 615 (La.App. 1 Cir.), writ denied, 531 So.2d 261 (La.1988). See also
State v. King, 01-506, p. 12 (La.App. 3 Cir. 11/7/01), 799 So.2d 1241, 1247, writ denied, 01-3222
(La. 9/30/02), 825 So.2d 1190.
5
also told police that he had explosives in his house. Officers consulted Hay again the
next day due to continued threatening calls made by Defendant, and Hay advised the
shift commander to suspend normal patrols on Defendant’s street. Hay also advised
the head of the department’s tactical team to conduct a night-time reconnaissance of
Defendant’s neighborhood. Events subsequently unfolded as previously described
in this opinion. Thus, it is clear that Defendant’s threats provoked a timely response
from the police.
Defendant’s primary argument on this issue is that he cannot be guilty
as a matter of law because police officers are not members of the “general public.”
Before its amendment in 2001, La.R.S. 14:40.1 read, in pertinent part,
Terrorizing is the intentional communication of information,
known by the offender to be false, that the commission of a crime of
violence is imminent or in progress or that a circumstance dangerous to
human life exists or is about to exist, thereby causing any person to be
in sustained fear for his or another person's safety; causing evacuation
of a building, a public structure, or a facility of transportation; or
causing other serious disruption to the public.
(Emphasis added).
Thus, the 2001 amendment of the statute appears to represent an effort to make the
statute’s application more restrictive, as the legislature replaced the term “any person”
with “general public.”
The State argues that police officers are “citizens first (members of the
public) and officers by profession second.” On the other hand, Defendant argues that
various legislative enactments within the Criminal Code recognize police officers as
being a special group of persons who receive special treatment. As example, he notes
the provisions that prescribe punishment for first degree murder of a peace officer,
6
battery of a police officer, aggravated assault upon a peace officer with a firearm,
unlawful use of a laser on a police officer, intentional exposure (of a police officer)
to the AIDS virus, resisting an officer, and flight/aggravated flight from an officer.
The State counters that a number of other groups benefit from the protections of
various Criminal Code provisions but do not, thereby, lose their status as members
of the public. As examples, the State mentions firefighters, school teachers, school
or recreational contest officials, correctional facility employees, bus drivers, child
welfare workers, and victims of domestic abuse.
We have found no case on point, but logic and practicality indicate that
different individuals and different groups may or may not be members of the general
public depending upon the context of the statute or regulation at issue, as it relates to
the facts of a particular case. In other contexts, the general public would consist of
people not involved in law enforcement. For example, in search and seizure cases,
limitations on police activities are often juxtaposed with limitations (or lack thereof)
on the activities of the general public. See, e.g., State v. Bracken, 506 So.2d 807, 812.
(La.App 1 Cir.), writ denied, 511 So.2d 1152 (La.1987), which noted that “[s]ince the
general public could peer into the interior of the vehicle” at issue, so could a police
officer. See also State v. Wallace, 41,832, 41,837, 41,838, p. 5 (La.App. 2 Cir.
1/31/07), 950 So.2d 135, 138, which noted, “law enforcement officers have the same
right as the general public to approach the entrance of a home.”
In order to clarify the legislative intent behind the 2001 amendment, we
obtained an audio CD of the committee hearing regarding HB 1944, the bill that led
to the 2001 amendment of La.R.S. 14:40.1. Committee members did not discuss the
7
issue at hand, although there was some discussion of the statute’s potentially broad
application. We note that the original amendment that was discussed in committee
still retained the term “any person,” rather than “general public.” The substitution of
the term “general public” for “any person” and “public” was done by floor
amendment, and legislative staff has advised us that there are no audio recordings of
any relevant floor proceedings.
Further, we find guidance from the Second Circuit Court of Appeals in
their case of City of West Monroe v. Cox, 511 So.2d 1200, 1202-03 (La.App. 2 Cir.
1987). In that case, our colleagues found that even though the disturbing the peace
statute, La.R.S. 14:103, prohibits offensive speech toward “any other person:”
Words spoken to a police officer such as “you g_____ d_____
m_____ f_____ I am going to [the Superintendent of Police] about this,”
and “You s_____ of a b_____, I’ll choke you to death,” without
threatening conduct, have been held within the realm of protected free
speech, even though the words are shocking to the sensibilities of others.
A trained police officer is held to a “higher degree of restraint tha[n] the
average citizen” to avoid physical retaliation even to words that might
be categorized as “fighting words.” See cases cited and discussed in
Malone v. Fields, 335 So.2d 538, 541-542 (La. App. 2d Cir.1976), in
City of New Orleans v. Lyons, 342 So.2d 196 (La.1977), and in State in
the Interest of W.B., 461 So.2d 366 (La.App. 2d Cir.1984).
Just as Cox set police officers apart from “average citizens” for the purposes of
La.R.S. 14:103 under the facts of that case, the police officers in this case are set apart
from the “general public” for purposes of La.R.S. 14:40.1 under the facts as they
exist.
It is apparent that if the term “any person” had been left in the statute,
then the statute would apply to the present case. However, it is our opinion that the
legislature’s decision to substitute the term “general public” represents an apparent
8
attempt to limit the application of the statute. Thus, this statute does not apply to the
current factual scenario. Hay testified that he had concerns regarding Defendant’s
neighbors, but the evidence does not demonstrate that Defendant’s threats were
intended to place his neighbors in sustained fear, or to cause an evacuation, or
disruption, in his neighborhood. Although police did conduct an evacuation, it was
not initiated until police learned of the Harrell shooting.
We, therefore, find that because of the 2001 amendments of La.R.S.
14:40.1, police officers are not members of the general public under the statute in the
instant case. The language of the statute contemplates criminal acts which place the
entire general population in fear. It is sufficient to say that police officers are not left
unprotected by our decision here. The State’s evidence demonstrated that Defendant
made threats with the apparent intent of influencing police officers’ conduct in
relation to their duties, i.e., patrolling his neighborhood. The public intimidation
statute, La.R.S. 14:122, clearly covers such a situation and gives the protection of the
law to the police officers who fall victim.
Accordingly, because we find merit in this assignment of error,
Defendant’s conviction is reversed, and his sentence for terrorizing is vacated and set
aside.2
2
We note that the record contains references to “the Millett case.” Details are not in the
record, but it is described as a shooting incident involving the police. We are aware of the widely
reported incident a few years ago, in which two Alexandria police officers were killed by a suspect
named Molette, who was also killed. Undoubtedly, Alexandria police officers remained aware of
this incident, and the jurors did, as well. However, most of the facts of that incident are outside the
record. Also, even if the officers involved in the current case felt greater fear of Defendant’s threats
because of the Molette incident, it would not change our conclusion that La.R.S. 14:40.1 does not
apply to police officers in this case under the facts as presented.
9
Possession of a Firearm by a Convicted Felon
In his final argument under this assignment of error, Defendant attacks
the sufficiency of the evidence supporting his conviction for possession of a firearm
by a convicted felon. The relevant statute, La.R.S. 14:95.1, provides, in pertinent
part:
A. It is unlawful for any person who has been convicted of a
crime of violence as defined in R.S. 14:2(B) which is a felony or simple
burglary, burglary of a pharmacy, burglary of an inhabited dwelling,
unauthorized entry of an inhabited dwelling, felony illegal use of
weapons or dangerous instrumentalities, manufacture or possession of
a delayed action incendiary device, manufacture or possession of a
bomb, or any violation of the Uniform Controlled Dangerous Substances
Law which is a felony, or any crime which is defined as a sex offense in
R.S. 15:541(14.1), or any crime defined as an attempt to commit one of
the above-enumerated offenses under the laws of this state, or who has
been convicted under the laws of any other state or of the United States
or of any foreign government or country of a crime which, if committed
in this state, would be one of the above-enumerated crimes, to possess
a firearm or carry a concealed weapon.
....
C. Except as otherwise specifically provided, this Section shall
not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of
firearms and carrying concealed weapons by persons who have been
convicted of certain felonies shall not apply to any person who has not
been convicted of any felony for a period of ten years from the date of
completion of sentence, probation, parole, or suspension of sentence.
(Emphasis added) (footnote omitted).
Defendant argues that the State had the burden of proving beyond a
reasonable doubt that his sentence was not completed ten years prior to the offense,
and that it failed to carry said burden of proof. It is well-settled that the ten-year
prescriptive period is an element of the offense.
10
Defendant acknowledges a 1988 guilty plea that resulted in a two-year
term of probation. Also, minutes introduced by the State show that Defendant’s
probation was extended for one year. It is Defendant’s position that his probation
should have expired no later than September 18, 1991. The State alleges that the
offenses in the present case occurred between July 30 and August 2, 2005.
Further, the State contends that Defendant’s probation did not expire in
1991 because a probation revocation warrant was issued on May 29, 1991. He was
not arrested on the warrant until February 6, 1995, and the revocation hearing was not
conducted until March 18, 1996. The State argues that the ten-year prescriptive
period did not begin to run until the latter date, and thus, La.R.S. 14:95.1 applies to
the present case.
In response to the State’s argument, Defendant claims that because he
was arrested–apparently on an unrelated matter–and released in 1993, his
probationary period did not continue until 1996. According to Defendant, the State’s
failure to execute the warrant in 1993 shows a lack of due diligence on its part. The
State suggests, or at least implies, that the 1993 arrest had no effect whatsoever on the
running of the probationary period. We have found no jurisprudence squarely
addressing this issue.
Although the ten-year prescriptive period is an element of the crime, the
particular issue of the possible effect of Defendant’s 1993 arrest on the status of his
probation was a legal question. Thus, the issue should have gone before the trial
court in a motion to quash because it was not a fact question that could be resolved
by the jury. Therefore, it is not a matter suited for analysis within the context of the
11
Jackson review we are conducting in these assignments of error and would, therefore,
lack merit in the current context.
We do observe that the relevant statute, La.Code Crim.P. art. 899(D),
states: “When a warrant for a defendant’s arrest or a summons for defendant’s
appearance is issued under Paragraph A or a detainer is issued under Paragraph B of
this Article, the running of the period of probation shall cease as of the time the
warrant, summons, or detainer is issued.” (Emphasis added). Prior to 1985, the
provision read: “When a warrant for a defendant’s arrest, issued under Paragraph A,
cannot be executed, the defendant shall be deemed a fugitive from justice and the
running of the period of probation shall cease as of the time the warrant was issued.”
(Emphasis added).
Thus, we find that the elimination of language relative to execution of
a warrant, detainer, or summons, indicates a legislative intent that the suspension of
the running of a defendant’s probationary period should continue despite intervening
incarceration. However, the possibility remains that the lengthening of Defendant’s
probationary period under Article 899 could have violated his constitutional due
process rights due to an unreasonable delay in execution. See, e.g., State v. Langley,
95-1489 (La. 4/14/98), 711 So.2d 651; State v. Newman, 527 So.2d 1036 (La.App.
2 Cir.), writ denied, 533 So.2d 356 (La.1988). As we have noted above, the State
argues that Defendant’s probationary period did not expire until 1996, approximately
five years after it normally would have run. Further, Defendant alleges that he was
arrested in 1993, a fact which could have an effect on a due process analysis.
However, since this is a purely legal issue and, thus, has no bearing in our current
12
Jackson review, it lacks merit in this context.3 Nonetheless, we will re-visit the issue
where Defendant raises it in the next assignment of error.
MOTION TO QUASH
As with his first three assignments of error, Defendant combines these
assignments in his brief. First, he argues that the trial court erred by summarily
denying his pre-trial motion to quash and that this court erred in denying his pre-trial
application for review of that ruling. On December 19, 2005, Defendant filed a
motion to quash alleging that his period of probation that we discussed in the
previous assignment of error was completed more than ten years before the offense
at issue. On the same date, the trial court wrote its denial on Defendant’s motion
without giving reasons. On January 25, 2006, this court denied review in an
unpublished opinion bearing docket number 06-12. In our denial,we cited State v.
Byrd, 96-2302, pp. 18-19 (La. 3/13/98), 708 So.2d 401, 411, cert. denied, sub nom,
525 U.S. 876, 119 S.Ct. 179 (1998), which held:
A motion to quash is, essentially, a mechanism whereby pre-trial
pleas are urged, i.e., pleas which do not go to the merits of the charge.
At a hearing on such a motion, evidence is limited to procedural matters
and the question of factual guilt or innocence is not before the court.
La.C.Cr.P. art. 531 et. seq.; State v. Rembert, 312 So.2d 282 (La.1975);
State v. Patterson, 301 So.2d 604 (La.1974).
In considering a motion to quash, a court must accept as true the
facts contained in the bills of information and in the bill of particulars,
and determine as a matter of law and from the face of the pleadings,
whether a crime has been charged; while evidence may be adduced, such
may not include a defense on the merits. State v. Gerstenberger, 260 La.
145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d
622 (1949) (“the fact that defendants may have a good defense is not
sufficient grounds to quash the indictment”).
3
Similarly, Defendant’s arguments in his reply brief regarding statutory construction lack
merit.
13
Thus, our ruling deferred Defendant’s argument to the merits. We note
that Defendant’s motion did not raise the specific issue now raised by appellate
counsel, i.e., the possible effect of his 1993 arrest on the length of his probation
period. The motion presented only the general question of whether the ten-year
prescriptive period in La.R.S. 14:95.1 had run. In that regard, our denial of the writ
was correct under the circumstances.
At trial, Defendant wanted to present evidence to show that the State did
not act with due diligence to execute the probation-violation warrant against him
when he was arrested in 1993. The trial court barred such evidence, expressing the
view that Defendant was attempting to present an issue of law to the jury and that the
argument should have been raised in a motion to quash. For the reasons we discussed
earlier in our Jackson review, we find that the trial court was correct in its ruling. As
we explained, Defendant’s argument had no merit under the relevant statute. His
argument only had potential merit as a constitutional matter, but this would be an
issue of law to be decided by the judge rather than the jury. Further, as we have said,
Defendant failed to raise the specific issue of the effect of the State’s warrant–or of
due diligence in its execution–in his motion to quash. For these reasons, this
argument lacks merit.
JURY INSTRUCTIONS
Defendant argues that the trial court erred by refusing to give special jury
instructions regarding the ten-year “cleansing period” of the possession of a firearm
by a convicted felon charge. The trial court ruled that the matter was a question of
14
law, and trial counsel objected. Again, this argument lacks merit for the reasons
discussed regarding his previous assignment of error.
The State argues that Defendant is improperly trying to collaterally
attack the predicate conviction and sentence. However, Defendant’s arguments
merely relate to the prescriptive period set forth in La.R.S. 14:95.1 and do not
improperly collaterally attack the predicate offense.
Defendant also attacks the jury instruction the trial court gave, arguing
that it misstated an element of the crime. The trial court said:
As to Count III, that is being a convicted felon in possession of a
firearm, the statute says it is unlawful for any person who’s been
convicted of a violation of the Uniform Controlled Dangerous
Substances Law, which is a felony to possess a firearm. The possession
of firearms and carrying concealed weapons by persons who have been
convicted of certain felonies shall not apply to any person who’s been
convicted of any felony for a period of ten years from the date of
completion of sentence, probation, parole or suspension of sentence.
Thus, in order to convict the defendant of a -- being a convicted
felon in possession of a firearm you must find: (1) That he was in
possession of a firearm; (2) That he was convicted of a violation of the
Uniformed Controlled Dangerous Substances Law that was a felony;
and (3) That there had been a period of ten years from the completion of
sentence, probation or parole or suspension of sentence.
The explanation given by the court is incorrect, as La.R.S. 14:95.1(C)(1)
states:
The provisions of this Section prohibiting the possession of
firearms and carrying concealed weapons by persons who have been
convicted of certain felonies shall not apply to any person who has not
been convicted of any felony for a period of ten years from the date of
completion of sentence, probation, parole, or suspension of sentence.
(Emphasis added).
15
Defendant acknowledges that he failed to lodge a contemporaneous
objection as required by La.Code Crim.P. art. 841. However, Defendant argues that
he was “obviously prejudiced” by the erroneous instruction. On the other hand, he
also appears to treat the issue as an ineffective assistance of counsel claim, which we
will address more fully hereinafter.
Due to the lack of contemporaneous objection, we are required to find
that the assignment lacks merit. See State v. Howard, 98-0064 (La. 4/23/99), 751
So.2d 783, cert. denied, 528 U.S. 974, 120 S.Ct. 420 (1999). See also State v.
Belgard, 410 So.2d 720 (La.1982). In Howard, the supreme court explained:
As an initial matter, defendant’s trial counsel did not object to the
instruction at trial, and thereby waived any claim based on it. La.C.Cr.P.
art. 841; [State v.] Taylor, [93-2201 (La. 2/28/96)], 669 So.2d [364] at
367-69; [State v.] Harris, 383 So.2d [1 (La.1980] at 10-11. Although
Louisiana courts have sometimes waived the contemporaneous objection
rule, see State v. Williamson, 389 So.2d 1328, 1331 (La.1980) (an error
involving “the very definition of the crime of which defendant was in
fact convicted . . . is of such importance and significance as to violate
fundamental requirements of due process”), this Court has also on two
occasions explicitly cautioned that Williamson did not establish
jurisprudentially the equivalent of a “plain error” rule created by
F.R.Crim.P. 52(b). State v. Arvie, 505 So.2d 44, 48 (La.1987); State v.
Thomas, 427 So.2d 428, 435 (La.1982) (on rehearing) (Williamson
“should not be construed as authorizing appellate review of every
alleged constitutional violation and erroneous jury instruction urged on
appeal without timely objection at occurrence.”); see also Belgard, 410
So.2d 720, 727 (La.1982) (to preserve issue of erroneous instruction on
elements of attempted second degree murder, defendant must have
objected to the charge at trial). At any rate, defendant’s claim fails on
the merits.
Id. at 804.
We note that the First Circuit Court of Appeal has also discussed the
viability of Williamson in detail. The first circuit observed:
16
However, according to the record before us, the defendant’s trial
counsel did not object to the erroneous instructions given by the trial
court. Thus, the defendant ordinarily is precluded from raising such an
alleged error for appellate review. LSA-C.Cr.P. arts. 801 and 841.
Nevertheless, exceptions to this rule have been made in individual cases
where there have been fundamentally erroneous misstatements of the
essential elements of the charged offense. In such cases, the Louisiana
Supreme Court has adopted the view that such fundamentally incorrect
jury instructions so affect the fairness of the proceedings and the
accuracy of the fact-finding process that due process of law requires
reversal, even in the absence of compliance with legislative procedural
mandates. See State v. Williamson, 389 So.2d 1328, 1331 (La.1980);
State v. Johnson, 98-1407, p. 10 (La.App. 1st Cir.4/1/99), 734 So.2d
800, 807, writ denied, 99-1386 (La.10/1/99), 748 So.2d 439.
Whether an appellate court can continue to make a State v.
Williamson analysis and review such a matter on direct appeal is now in
doubt, in light of the supreme court's statement in State v. Hongo:
Although this case is before us via post-conviction
proceedings because of trial counsel’s failure to object, we
note that because we find that the instant error is not
structural, it necessarily is not of such significance as to
violate fundamental requirements of due process, See State
v. Williamson, 389 So.2d 1328 (La.1980), and thus a
defendant must make a contemporaneous objection in order
to preserve the error for direct review. State v. Thomas,
427 So.2d 428, 435 (La.1982) (on rehearing) (limiting
Williamson as it “should not be construed as authorizing
appellate review of every alleged constitutional violation
and erroneous jury instruction urged first on appeal without
timely objection.”)
State v. Hongo, 706 So.2d at 422, n. 3. Nevertheless, we find it
unnecessary to resolve the issue in the case now before the court, having
found reversible error on another basis. Consequently, we pretermit this
assignment of error.
State v. Woods, 00-2147, pp. 18-19 (La.App. 1 Cir. 5/11/01), 787 So.2d 1083, 1096-
97, writ denied, 01-2389 (La. 6/14/02), 817 So.2d 1153.
In State v. Falcon, 06-798 (La.App. 5 Cir. 3/13/07), 956 So.2d 650, the
fifth circuit cited both Hongo and Williamson, and then addressed a faulty jury
17
instruction despite the absence of a contemporaneous objection. However, the
instruction in Falcon was easily disposed of as harmless error. While the possible
error here is potentially more complex, we find that the failure to timely object did not
allow the trial court to correct the obvious error and that this assignment of error lacks
merit. However, we shall revisit this issue in our discussion of Defendant’s
ineffective assistance of counsel claim, wherein he argues several deficiencies in trial
counsel’s performance relating to the ten-year prescriptive period.
REMOVAL OF THE JURY
In this assignment of error, Defendant claims that the record fails to
show that the jury was removed before the hearing regarding the voluntariness of his
statement to police. This assertion was correct regarding the transcript; however, the
minutes clearly stated that the jury was removed before the hearing, and the context
of the transcript suggested the minutes were correct. We contacted the district court
clerk’s office and obtained a corrected record page that shows that the jury was
removed before the voluntariness hearing.
Therefore, this assignment of error has no merit, because it lacks a
factual basis.
FREE AND VOLUNTARY CONFESSION
In this assignment of error, Defendant argues that the trial court erred in
concluding that his statement to Detective Cedric Green was free and voluntary. The
relevant statute, La.R.S. 15:451, prescribes that “[b]efore what [purports] to be a
confession can be introduced in evidence, it must be affirmatively shown that it was
18
free and voluntary, and not made under the influence of fear, duress, intimidation,
menaces, threats, inducements or promises.” The analysis is well-settled:
In considering the admissibility of a statement, it is well settled
that the State must bear the burden of demonstrating a defendant’s
knowing and intelligent waiver of his or her privilege against
self-incrimination and the right to counsel. State v. Vigne, 01-2940
(La.6/21/02), 820 So.2d 533, quoting, Tague v. Louisiana, 444 U.S. 469,
100 S.Ct. 652, 62 L.Ed.2d 622 (1980). Furthermore, La.R.S. 15:451
specifically states that before a confession can be introduced, “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.” A trial court's determination regarding the
admissibility of a statement is to be given great weight and will not be
disturbed by a reviewing court unless it is clearly unsupported by the
evidence. Vigne, 820 So.2d 533.
State v. Chesson, 03-606, p. 7 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 173, writ
denied, 03-2913 (La. 2/13/04), 867 So.2d 686. The jurisprudential deference to trial
courts’ admissibility rulings includes their determinations regarding weight and
credibility of evidence. State v. Brown, 03-0897 (La. 4/12/05), 907 So.2d 1,
rehearing granted in part on other grounds, 03-0897 (La. 6/29/05), 907 So.2d 36.
In the present case, Detective Green, who had known Defendant for
some time before the incident at issue, testified that he read Defendant his Miranda
rights and that Defendant signed a waiver of rights form. Detective Green said he did
not threaten, intimidate, or coerce Defendant in any way to obtain the confession. He
testified that he did not make any promises to Defendant, that Defendant appeared to
be a person of normal intelligence, and that he was not drugged or intoxicated when
he gave the confession. Further, Detective Green noted that Defendant was
communicative that night and “[a]ctually, he didn’t want me to leave him. He didn’t
19
even want me to go to -- to the -- to get some water. He wanted me to stay in the
room with him.”
Defendant now claims that a number of factors may have clouded his
judgment, such as lack of sleep, lack of diabetes medication, exposure to teargas, and
being tazered after he surrendered to police. These matters were addressed, in large
part, during Defendant’s cross-examination of Detective Green. According to
Detective Green, the siege of Defendant’s home lasted from noon until 1:00 a.m. the
following morning. However, Detective Green said that Defendant was coherent and
did not have any effects of the teargas. He said that Defendant wanted something to
eat and was given food and drink.
Defendant testified regarding the voluntariness of his statement. He
claimed not to remember giving Detective Green the statement. Further, he testified
that he had not taken his diabetes medication for “two or three weeks” before the
incident at issue, that said lack of medication made his blood sugar levels drop, and
that such a drop in his blood sugar typically rendered him “very incoherent.” He also
testified that he had smoked marijuana before noon on the date of the incident.
However, he acknowledged that he had seen and spoken to Detective Green, that
another officer was present, and that he was given fruit and water. He also
acknowledged that he was not beaten or threatened and that he did not feel
intimidated.
Defendant points out the well-settled principle that appellate review of
a trial court’s ruling on a motion to suppress may include other evidence introduced
20
at trial. With that in mind, we listened to the audiotape of Defendant’s statement, and
it appears that Defendant sounded coherent during the interview.
The trial court apparently found Detective Green more credible than
Defendant. When we view the evidence in light of Chesson and Brown, we find that
no error occurred, and this assignment of error lacks merit.
SELF REPRESENTATION
In this assignment of error, Defendant asserts that the trial court erred by
denying his request to represent himself at trial. Before the State called its first
witness, the following colloquy occurred:
DEFENSE COUNSEL:
And, Mr. Brown, I think, wanted to make a statement or
say something to the Court. He was raising his hand. Now is as
good a time as any.
THE COURT:
Go ahead, Mr. Brown. You had something you wanted to
say, sir?
DEFENDANT:
Yes. Your Honor, at this time I’m ready to revoke [sic] my
right to self-counsel.
THE COURT:
To what?
DEFENDANT:
To self-counsel.
THE COURT:
No, sir. It’s too late for that. You can’t in the beginning --
in the middle of trial want to represent yourself.
21
Why is that you want to represent yourself, sir?
DEFENDANT:
Because me and my counsel have a conflict.
THE COURT:
Why do you and your counsel have a conflict?
DEFENDANT:
Because me and my counsel did not -- a lot of the stuff, I
know nothing about. I have not been informed to [sic].
I think I wrote you a request before about me and counsel
not being able to collaborate on my defense, and you had me
remanded to DC1 in order to do this.
And I informed you a second time that me and counsel was
having a problem communicating. And now I’m -- I have stuff in
front of me that I have not -- that I know nothing of, that my
counsel just refused to -- my counsel refused to subpoena
witnesses that I gave him a list of.
My counsel just told me that if I didn’t know about this, it’s
not his fault.
THE COURT:
All right.
DEFENSE COUNSEL:
Your Honor, I’d like to make a statement.
Mr. Brown did request witnesses. We made contact with
all but one of them. One was a -- a U.S. -- one of the -- a Federal
Marshal, but none of these witnesses had anything to do or were
anyway involved in the incident that we’re talking about today.
I told that to Mr. Brown in writing, if my memory serves me, at
least two months ago, and I will produce that letter --
THE COURT:
No, that’s okay.
22
DEFENSE COUNSEL:
I told him that I was not going to subpoena these witnesses,
that if he wanted to take action on his own, he was free to do so.
But I was not going to do it, and I was not going to call these
witnesses.
THE COURT:
Typically, the problem is the defendants want witnesses
subpoenaed to testify about certain things that are not relevant
and the Judge doesn’t allow it. And the lawyer says, no, I’m not
going to do that because it’s not relevant to what we’re talking
about. And they get upset that their subpoenas aren’t testified --
I mean, aren’t subpoenaed -- their witnesses are not subpoenaed.
So that’s what you’re saying happened in this case?
DEFENSE COUNSEL:
That’s correct, Your Honor.
And -- and as far as communicating with counsel, it is Mr.
Brown’s obligation to do the communicating.
Mr. Brown has been studious in his efforts to not cooperate
with me at all.
THE COURT:
All right. Mr. Brown, your request is denied, sir.
Both parties cite State v. Hypolite, 04-1658 (La.App. 3 Cir. 6/1/05), 903
So.2d 1275, writ denied, 06-0618 (La. 9/22/06), 937 So.2d 381. In that case, we
wrote:
Hypolite also argues that the trial court erred by denying him his
constitutional right to represent himself. He argues that the court
applied the wrong standard in denying his motion for
self-representation.
In support of his position, Hypolite cites State v. Santos, 99-1897,
p. 3 (La.9/15/00), 770 So.2d 319, 321, in which the supreme court
explained:
23
A trial judge confronted with an accused’s unequivocal
request to represent himself need determine only whether
the accused is competent to waive counsel and is
“voluntarily exercising his informed free will.” Faretta [v.
California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975)] 422 U.S. at 835, 95 S.Ct. at 2541. In this context,
“the competence that is required of a defendant seeking to
waive his right to counsel is the competence to waive the
right, not the competence to represent himself.” Godinez
v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 2687, 125
L.Ed.2d 321 (1993) (footnote omitted).
In the present case, the trial court and court of appeal
therefore erred in assessing relator’s competence to waive
counsel according to a standard appropriate for measuring
the competence of counsel against professional norms.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984).
In the present case, the “Faretta Hearing” was not held until the
State was about to call its final witness in its case-in-chief. In
proceedings conducted outside the presence of the jury, the court
questioned Hypolite with regard to his ability to represent himself.
Upon being asked by the court whether he understood that he did not
know how to try a case, Hypolite responded that it “shouldn’t be too
hard.” Hypolite stated that he felt he could represent himself, in spite of
being informed of the complexities of trying cases. He asserted that he
needed to represent himself because his lawyers would not ask the
questions he wanted asked. Hypolite opined that all it would take to
represent himself would be common sense. The court denied the request
stating that:
You’re not prepared to represent yourself. You have
shown no indication to me that you have experience in
being in court to watch cases. You have no experience in
being tried before. You disagree with your lawyers about
some things, so you think you're going to represent
yourself. And then of course after you represent yourself
and if you get convicted, you’re going to complain because
you weren't capable of representing yourself. And in my
opinion, you're not capable of representing yourself. I
deny your request to represent yourself. Have a seat.
It appears that the trial court did not apply the appropriate
standard in evaluating Defendant’s motion as set out in Santos.
However, as the State points out, the present case is . . . distinguishable
24
from Santos, because Hypolite did not move to represent himself until
the State had nearly completed its case-in-chief. He had made earlier
attempts to have his two appointed attorneys dismissed, but appeared to
want new counsel appointed. Hypolite did not unequivocally move to
represent himself until the middle of the trial.
In arguing an oral motion to dismiss his attorneys, made earlier in
the trial, Hypolite stated to the court, “I need a new lawyer to represent
me because the lawyer I have said I'm guilty already.” This was not a
request to represent himself since Defendant's language shows he was
asking for new counsel.
The State cites State v. Bridgewater, 00-1529, pp. 19-20
(La.1/15/02), 823 So.2d 877, 895, modified on rehearing, 00-1529
(La.6/21/02), 823 So.2d at 909, cert. denied, 537 U.S. 1227, 123 S.Ct.
1266, 154 L.Ed.2d 1089 (2003), which explained that:
Substantively, defendant’s request to represent
himself was not an unequivocal one; rather, it was an
obfuscated request to substitute appointed counsel because
of his disagreement with current counsel's choice of trial
strategy. Addressing a similar request, the federal court in
[U.S. v.] Frazier-El [204 F.3d 553 (4th Cir.), cert. denied,
531 U.S. 994, 121 S.Ct. 487, 148 L.Ed.2d 459 (2000) ],
supra, reasoned:
A trial court must be permitted to distinguish
between a manipulative effort to present
particular arguments and a sincere desire to
dispense with the benefits of counsel. The
circumstances surrounding Frazier-El's
purported waiver of his right to counsel and
the assertion of his right to proceed without
counsel in this case suggest more a
manipulation of the system than an
unequivocal desire to invoke his right of
self-representation. Taking the record as a
whole, we are satisfied that the district court
was justified, when confronted with
Frazier-El’s vacillation between his request
for substitute counsel and his request for
self-representation, in insisting that Frazier-El
proceed with appointed counsel.
204 F.3d at 560 (internal citations omitted).
25
Although the defendant argues that this Court’s decision in State
v. Santos, 99-1897 (La.9/15/00), 770 So.2d 319, is controlling, that case
is easily distinguishable. In Santos, supra, the defendant made an
unequivocal request to discharge his court-appointed counsel and to
represent himself, explaining that he feared “‘the Indigent Defender
Board is working with the police of St. Bernard Parish to keep me
here.’” 99-1897 at p. 3, 770 So.2d at 321. Unlike the defendant in
Santos who was convinced that no public defender could serve his
interests, in this case defendant specifically stated that it was current
counsel with whom he was dissatisfied. Two other factors we relied
upon in Santos were that the defendant (i) unequivocally asserted his
right to represent himself, and (ii) made that request “under
circumstances which precluded a finding that he was simply engaged in
dilatory tactics.” 99-1897 at p. 4, 770 So.2d at 322. Neither factor is
present here.
First, defendant’s request was not clear and unequivocal; rather,
defendant’s request was, like in Frazier-El, supra, “a manipulative effort
to present particular arguments” and vacillated between
self-representation and representation by counsel. Second, given that
defendant raised similar arguments before (a point discussed below) and
that he sought a continuance on the eve of trial, this clearly could be
characterized as a “dilatory tactic.”
The Bridgewater court also found that the trial judge applied the
correct legal standard to the defendant’s request to represent himself. It
explained that the lower court considered matters bearing upon the
defendant's competence to waive, even though it also noted factors
related to his competence to represent himself. Id. In this regard,
Bridgewater is distinguishable from the present case. However,
Bridgewater also demonstrates an independent basis for rejecting
Hypolite's claims. That basis, the dilatory and manipulative nature of
the motion, found in both Bridgewater and this case, distinguishes both
of them from Santos.
The Santos court observed that a defendant’s right to
self-representation is entitled to great respect and protection from the
courts, stating:
The trial court therefore erred in denying relator his
Sixth Amendment right to self-representation and the error
is not subject to harmless-error analysis. [McKaskle v.]
Wiggins, [465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122
(1984) ] 465 U.S. at 177, n. 8, 104 S.Ct. at 950 (“Since the
right of self-representation is a right that when exercised
usually increases the likelihood of a trial outcome
26
unfavorable to the defendant, its denial is not amenable to
‘harmless error’ analysis. The right is either respected or
denied; its deprivation cannot be harmless.”).
Santos, 770 So.2d 319, 322.
However, under Bridgewater’s reasoning, a defendant’s attempt
to use the right to self-representation as a tool of delay or manipulation
puts him outside the protections afforded to genuine attempts to assert
the right. This is a long-standing principle in Louisiana jurisprudence.
See, e.g., State v. Hegwood, 345 So.2d 1179 (La.1977).
As noted earlier, Hypolite did not move to represent himself until
the State's case-in-chief was nearly complete. Therefore, the timing of
the request indicates that it was merely a delay tactic. Much like the
defendant in Bridgewater, Hypolite made earlier attempts to obtain
substitute counsel, apparently due to disagreements regarding trial
strategy. However, he did not clearly ask to represent himself until the
State was about to call its last witness in its case-in-chief. As a result,
his request appears to be “a manipulative effort to present particular
arguments” rather than “a sincere desire to dispense with the benefits of
counsel.” Bridgewater, 823 So.2d 877, 895, quoting U.S. v. Frazier-El,
204 F.3d 553, 560 (4th Cir.), cert. denied, 531 U.S. 994, 121 S.Ct. 487,
148 L.Ed.2d 459 (2000). Therefore, we find no error in the trial court’s
refusal to allow Hypolite to represent himself.
Id. at 1280-83.
In this case, Defendant is in a position similar to Hypolite’s since he did
not ask to represent himself until after trial had begun. On November 10, 2005,
Defendant filed a pro se motion seeking to be appointed as co-counsel. At a pre-trial
hearing on November 18, 2005, Defendant complained that he was not having enough
personal communication with trial counsel. However, he did not ask to represent
himself, to act as co-counsel, or to replace his trial counsel, and the trial court did not
specifically address the issue. The trial court advised Defendant that it was not
27
required to consider any of his pro se motions since he was represented by counsel.4
On December 2, 2005, the trial court denied Defendant’s written motion with the
notation, “Moot. Matter was heard on Friday November 18, 2005.”
On December 13, 2005, Defendant filed a pro se motion for new counsel,
and the trial court held a hearing thereon on January 30, 2006. Defendant again
complained about having trouble contacting his trial counsel. The trial court stated
it would “raise the issue” with trial counsel, who was not present at the hearing, and
denied Defendant’s motion.
Although the record does not contain another written motion for
appointment of new counsel, the trial court held another hearing on such a request on
May 26, 2006. Defendant repeated his allegations that trial counsel was unresponsive
and/or uncommunicative. Defense counsel gave the trial court explanations for the
problems; for example, he said that the State’s witnesses would not talk to him. He
also stated that he had met with Defendant, at a jail facility for more than an hour, and
that Defendant had “been less than cooperative.” The trial court denied the motion
to appoint new counsel, but Defendant did not ask to represent himself.
As we noted earlier, Defendant is in a position similar to that of the
defendant in Hypolite. While his motion to represent himself came earlier in the trial
process than Hypolite’s did, it still did not come until after trial began. The jury had
already been selected and sworn. As in Hypolite, Defendant’s pre-trial motions
sought new counsel, or co-counsel status, rather than self-representation.
4
This ruling was incorrect pursuant to State v. Melon, 95-2209 (La. 9/22/95), 660 So.2d
466, discussed below.
28
Further, as the State points out, there is another passage in the record that
suggests Defendant was pursuing manipulative, or at least dilatory, actions at trial.
At the close of his testimony regarding the admissibility of his statement to police,
the trial court noted for the record that Defendant had initially refused to leave his cell
that day, claiming that he was sick, and that he had not received his blood sugar
medication. According to the trial court, a search of Defendant’s prison locker
revealed two hundred of his blood sugar pills. When confronted with this discovery,
he admitted to not taking his medicine.
Defendant also complains that the trial court erred by refusing to
consider his pro se pre-trial “motion for appeal,” filed January 10, 2006. In its written
denial, the trial court stated that Defendant had counsel and had been ordered not to
file any pro se motions. The trial court cited State v. Guidry, 94-607 (La.App. 3 Cir.
12/7/94), 647 So.2d 511.
As Defendant points out, Guidry is not good law. The supreme court
has stated,
We further direct that the lower courts must also accept and
consider filings from represented defendants in a pre-verdict context
whenever doing so will not lead to confusion at trial. See, [e.]g., State
v. Sabella, 94-1919 (La. 8/12/94), 642 So.2d 1271; State v. Terry,
94-1493 (La. 7/5/94), 639 So.2d 1186. All courts retain the discretion
to grant or withhold co-counsel status, after or before verdict. State ex
rel. Spitz v. State, 94-0792 (La. 4/22/94), 637 So.2d 149; State v.
McCabe, 420 So.2d 955, 957 (La.1982).
State v. Melon, 95-2209, p. 1 (La. 9/22/95), 660 So.2d 466, 477. However, the trial
court’s reliance on Guidry is moot. The matter that Defendant wanted to raise, i.e.,
the December 19, 2005 denial of his pro se motion to quash, was considered by this
29
court in the unpublished writ bearing docket number 06-12, discussed earlier. As
previously noted, the trial court correctly denied the application on January 25, 2006.
Therefore, based on the facts present in this case when viewed in light
of Hypolite, we find that this assignment of error lacks merit.
JUROR REMOVAL
In this assignment of error, Defendant argues that the trial court erred by
dismissing two jurors without a hearing, one of them without Defendant being
present. However, as the State points out, the record indicates that Defendant failed
to lodge a contemporaneous objection to either dismissal. The State cites State v.
Howard, 31,807 (La.App. 2 Cir. 8/18/99), 746 So.2d 49, writ denied, 99-2960 (La.
5/5/00), 760 So.2d 1190 (citing State v. Sherman, 630 So.2d 321 (La.App. 5 Cir.
1993), writ denied, 94-0258 (La. 5/6/94), 637 So.2d 1046), which held that La.Code
Crim.P. art. 841 barred the defendant from arguing that the trial court erred by
conducting part of the voir dire outside his presence. The State also notes State v.
Broaden, 99-2124 (La. 2/21/01), 780 So.2d 349, cert. denied, 534 U.S. 884, 122 S.Ct.
192 (2001), which held similarly. Further, State v. Tolliver, 32,859 (La.App. 2 Cir.
3/1/00), 753 So.2d 958, writ denied, 00-2028 (La. 3/30/01), 788 So.2d 440, applied
La.Code Crim.P. art. 841 to a defendant’s argument that a juror had fallen asleep near
the beginning of trial during the State’s case.
Defendant relies upon State v. Tennors, 05-538 (La.App. 3 Cir. 2/15/06),
923 So.2d 823, in which this court reversed a defendant’s convictions for aggravated
burglary and simple burglary because the trial court failed to hold an evidentiary
hearing before dismissing a juror. However, the defendant in that case lodged a
30
timely objection at trial and apparently moved for mistrial as well. Thus, Tennors
does not negate the fact that Defendant in the present case failed to preserve the issue.
Further, Defendant raises State v. Grogan, 98-98 (La.App. 3 Cir. 12/9/98), 723 So.2d
1049, in which we recognized as error patent a defendant’s exclusion from an in-
chambers conference in which three prospective jurors were questioned. Although
the defendant’s counsel was present and questioned the prospective jurors, we held
that the error was not harmless and reversed the defendant’s conviction for
distribution of cocaine. While this court recognized the issue as an error patent, we
note that at that trial, the defendant specifically requested to attend the in-chambers
conference, and when the trial court excused all three prospective jurors for cause,
trial counsel objected regarding two of them.
In both Grogan and Tennors, the defendants clearly objected to the
proceedings at issue. Certainly, a defendant may acquiesce to the kind of juror
removal or substitution at issue in the present case. Defendant may have seen a
strategic benefit in the court’s actions or may have agreed that the original jurors were
properly removed due to family emergencies. Therefore, we hold that Defendant
failed to preserve this issue due to the lack of a contemporaneous objection.
However, as we have mentioned in earlier assignments of error, we will revisit
Defendant’s concerns in the next assignment of error which alleges ineffective
assistance of counsel. Accordingly, for the reasons discussed above, this assignment
of error lacks merit.
31
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant states in his last assignment of error filed by appellate
counsel, “[I]n the alternative, if any of the errors alleged in the preceding
Assignments of Error are held to be procedurally barred, the failure of trial counsel
to object, either at trial or by filing the appropriate motions pre-trial or post-trial,
constitutes ineffective assistance of counsel.” Defendant has also filed a pro se brief
assigning four errors. The first two assignments of error generally echo appellate
counsel’s arguments under this assignment of error.
The analysis for ineffective assistance claims is well-settled:
In order to prove that counsel was ineffective, the defendant must meet
the two-pronged test enunciated by the Supreme Court. First, the
defendant must show that counsel’s performance was deficient. Second,
the defendant must show that this deficiency prejudiced the outcome of
the trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Brooks, 505 So.2d 714 (La.1987), cert.
denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).
State v. James, 95-962, pp. 4-5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465.
Ineffective assistance claims are usually addressed in the post-conviction process.
However, such claims may be addressed on appeal if the record contains evidence
sufficient for analysis. State v. Seiss, 428 So.2d 444 (La.1983). We have done just
that recently in the case of State v. Roberson, 05-1206 (La.App. 3 Cir. 3/1/06), 924
So.2d 1201, where on appeal we overturned a first-degree robbery conviction due to
trial counsel’s failure to object to the admission of a letter related to plea negotiations.
Defendant first contends that trial counsel was remiss by failing to file
a motion to quash or by failing to adopt Defendant’s pro se motion to quash that we
discussed earlier in this opinion. Trial counsel also failed to seek review of the denial
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of Defendant’s pro se motion. As observed in the Jackson review, Defendant filed
a pre-trial motion to quash, pro se, arguing that ten years had elapsed since the end
of his period of probation on an earlier conviction. The trial court denied the motion
without reasons. The minutes show that Defendant was already represented by trial
counsel when he filed the pro se motion on December 19, 2005. We have already
concluded that this court was correct in denying the motion as presented. We found
that Defendant, working pro se, failed to raise the specific issue of whether his period
of probation was completed more than ten years before the present offenses due to the
State’s possible lack of due diligence in executing the probation warrant. In failing
to adopt the motion, trial counsel also failed to raise the issue pre-trial.
As discussed in the Jackson review, there is a viable argument that the
State should have or could have served the probation revocation warrant on
Defendant when he was incarcerated in 1993. Further, this argument rests upon well-
established constitutional law. Thus, trial counsel should have been aware of it. In
fact, as noted in an earlier assignment of error, trial counsel must have been aware of
the issue as he tried to raise it at trial. Further, the general issue of whether the
cleansing period had expired should have been brought to his attention by
Defendant’s pro se efforts. Also, there is a serious question as to whether counsel’s
pre-trial inaction was a reasonable trial strategy, as it forfeited a potentially
meritorious issue that could have quashed a charge. Therefore, we hold that trial
counsel’s failure to raise the issue constituted deficient performance. Accordingly,
we will proceed to the second step in the Strickland analysis, i.e., whether trial
counsel’s deficient performance prejudiced Defendant’s case.
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At the heart of this issue is the fact that trial counsel’s inaction placed
Defendant in a quandry. As just noted, Defendant’s pro se motion, which came close
to raising a viable issue, was denied. We have further noted that this court’s writ
opinion indicated that the generalized issue he raised went to the merits; however,
when trial counsel tried to present a witness at trial on the issue of due diligence, the
trial court would not allow the witness to be called because the issue was one of law
and, thus, not proper for the jury’s consideration. Thus, Defendant was unable to
present an argument that potentially could have negated an element of the crime of
illegal possession of a firearm by a convicted felon. It is our opinion that both the
trial court’s ruling and our ruling were correct. With that in mind, we must hold that
Defendant’s dilemma was caused by trial counsel’s pre-trial inaction regarding the
due diligence issue. Therefore, trial counsel’s deficient performance prejudiced
Defendant’s case.
Since the issue of due diligence in execution of the warrant was not
addressed below, the record does not contain sufficient information to assess the
ultimate merit of the issue. However, as trial counsel’s ineffectiveness prevented the
issue from being addressed at all in the trial court, Defendant’s conviction for illegal
possession of a weapon by a convicted felon is reversed, and the case remanded for
further proceedings in accordance with this opinion.
Defendant argues that trial counsel was ineffective for a number of
reasons, but we do not address some of them because of our previous ruling.
However, we must discuss two other claims of ineffectiveness of counsel made in
Defendant in his pro se brief. First, he claims that trial counsel was ineffective by
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failing to object to the State’s use of a lay witness to identify Defendant’s voice on
recordings of his threatening telephone calls to the police department.
Notwithstanding that Defendant admitted making the telephone calls in his statement
to police, we pretermit discussion of this assignment of error because we have
reversed that conviction.
Next, Defendant assigns as error that trial counsel was ineffective for
filing a motion to sever the terrorizing charge, rather than the possession of a firearm
by a convicted felon charge. He claims that the latter charge allowed the admission
of “other crimes evidence” that may have adversely affected his case regarding the
attempted first degree murder charge. In State v. Roberts, 06-765 (La.App. 3 Cir.
1/17/07), 947 So.2d 208, we recently held that the trial court did not err by refusing
to sever a possession of a firearm by a convicted felon charge from a murder charge
and an attempted murder charge where there was strong evidence regarding each
individual charge. Thus, in the instant case, trial counsel’s actions did not prejudice
Defendant’s case under the Strickland test, and this assignment of error is, therefore,
meritless.
CONCLUSION
Defendant’s conviction and sentence for attempted first degree murder
are affirmed. However, his conviction for terrorizing is reversed, and his sentence is
vacated. Also, Defendant’s conviction for possession of a firearm by a convicted
felon is reversed, his sentence is vacated, and the matter is remanded for further
proceedings consistent with this opinion.
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AFFIRMED IN PART, REVERSED IN PART AND RENDERED,
AND REVERSED IN PART AND REMANDED.
36