State of Louisiana v. Robert Leroy McCoy

Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #057

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 19th day of October, 2016, are as follows:

BY HUGHES, J.:

2014-KA-1449 STATE OF LOUISIANA v. ROBERT LEROY MCCOY (Parish of Bossier)

For the reasons assigned herein, the defendant’s conviction and

death sentence are affirmed. In the event this judgment becomes

final on direct review when either: (1) the defendant fails to

petition timely the United States Supreme Court for certiorari;

or (2) that Court denies his petition for certiorari; and either

(a) the defendant, having filed for and been denied certiorari,

fails to petition the United States Supreme Court timely, under

its prevailing rules, for rehearing of denial of certiorari; or

(b) that Court denies his petition for rehearing, the trial judge

shall, upon receiving notice from this court under LSA-C.Cr.P.

art. 923 of finality of direct appeal, and before signing the

warrant of execution, as provided by LSA-R.S. 15:567(B),

immediately notify the Louisiana Public Defender Board and

provide the Board with reasonable time in which: (1) to enroll

counsel to represent the defendant in any state post-conviction

proceedings, if appropriate, pursuant to its authority under LSA-

R.S. 15:178; and (2) to litigate expeditiously the claims raised

in that original application, if filed, in the state courts.

CONVICTION AND SENTENCE AFFIRMED.

CRICHTON, J., additionally concurs and assigns reasons.

10/19/16

SUPREME COURT OF LOUISIANA

NO. 2014-KA-1449

STATE OF LOUISIANA

VERSUS

ROBERT LEROY McCOY

ON APPEAL

FROM THE TWENTY-SIXTH JUDICIAL DISTRICT COURT

FOR THE PARISH OF BOSSIER

HUGHES, J.

This is a direct appeal under LSA-Const. Art. V, § 5(D) 1 by the defendant,

Robert LeRoy McCoy. The defendant was indicted by a Caddo Parish grand jury,

on May 29, 2008, on three counts of first degree murder, for the murders of Willie

Ray Young, Christine Colston Young, and Gregory Lee Colston, in violation of

LSA-R.S. 14:30. After a trial, the jury found the defendant guilty as charged on all

three counts. At the conclusion of the penalty phase of the trial, the jury

unanimously returned a verdict of death on all three counts, finding the aggravating

circumstance that the defendant knowingly created a risk of death or great bodily

harm to more than one person. The trial court sentenced the defendant to death, in

accordance with the jury’s determination. The defendant now appeals his

convictions and sentences, raising sixteen assignments of error. After a thorough

review of the law and the evidence, we find no merit in any of the assignments of

1

Article V, Section 5(D) provides, in pertinent part: “[A] case shall be appealable to the

supreme court if . . . the defendant has been convicted of a capital offense and a penalty of death

actually has been imposed.”

error. Therefore, we affirm the defendant’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

Christine Colston Young and her husband, Willie Ray Young, were shot and

killed at their home at 19 Grace Lane in Bossier City, Louisiana, on May 5, 2008;

Christine’s grandson, Gregory Lee Colston, was also shot and later died. Gregory

had recently come to live with his grandparents so that he could finish his senior

year at a local high school, after his mother, Yolanda Colston, had separated from

the defendant earlier in the Spring of 2008 and following an incident of domestic

abuse battery in April 2008.2 On advice of law enforcement, Yolanda and her

infant daughter had gone into protective custody out-of-state, and a warrant was

issued, on April 16, 2008, for the defendant’s arrest for aggravated battery, by

Detective Kevin Humphrey. In April and May, the defendant had evaded arrest

under the warrant by failing to show up for work at his place of employment. The

defendant had also traveled to Oakland, California, where his half-brother resided,

but his cell phone records indicated that he returned to Bossier City on or about

May 4, 2008, as calls were initiated from the defendant’s cell phone in Bossier and

Caddo Parishes on the day of, and the day after, the murders.

On the night of May 5, 2008 a 911 call was placed from 19 Grace Lane, in

which Christine Colston Young could be heard screaming, “She ain’t here, Robert .

. . I don’t know where she is. The detectives have her. Talk to the detectives. She

ain’t in there, Robert.” A gunshot was then heard on the 911 tape and the call was

disconnected.

The Bossier City Police Department (“BCPD”) broadcast that a disengaged

911 call came from 19 Grace Lane, which was heard by Detective Humphrey, who

immediately recognized the address as the residence of Yolanda Colston’s parents.

2

At the penalty phase, Yolanda Colston testified that, during the incident of domestic abuse, the

defendant pinned her down on the bed at knifepoint and threatened to kill her and then kill

himself.

2

However, Detective Humphrey was working a security detail at a local store, and

so he notified the first responders, via police radio, that he had an arrest warrant for

Robert McCoy, whose estranged wife’s mother resided at 19 Grace Lane.

Detective Humphrey cautioned the first responders to be on the lookout for a white

four-door Kia, which he believed was driven by Robert McCoy.

Officer Kary Szyska responded that he was in the vicinity, approaching 19

Grace Lane, and that he saw a white Kia fleeing from the scene, which was

recorded on the officer’s dashboard video camera. Officer Szyska made a U-turn

and gave chase. On a dead-end street within a few blocks of the victims’ home,

the video showed a black male matching the defendant’s general physical

description jump out of the driver’s side of the Kia, scale a nearby fence, and run

across I-20.

Meanwhile, Detective Humphrey called the victims’ home and, receiving no

answer, he drove there, arriving with other officers to find the front door ajar.

Upon entering, the officers discovered fifty-five-year-old Christine Colston Young

and fifty-year-old Willie Young, who was a cousin of the defendant, dead at the

scene. Seventeen-year-old Gregory Colston was found gravely injured, but alive,

and he was transported to the hospital, where he died a short time later. All three

victims suffered a single gunshot wound to the head, fired from close range.

Since the abandoned Kia had a temporary license plate, the police ran the

VIN (vehicle identification number) and found that it was registered to Robert and

Yolanda McCoy. The police impounded the vehicle and searched the interior.

There was a white cordless (landline) telephone on the driver’s seat, and the

charger/cradle for the cordless handset was found inside the victims’ residence.

The serial and model numbers on the handset found in the defendant’s Kia

matched that on charger/cradle found in the victims’ home, confirming that the

phone used by Christine Colston Young to call 911 was the phone found in the

3

defendant’s abandoned vehicle immediately after the murders.

Also found in the center console of the abandoned Kia was a Walmart bag

with a box of .380 caliber ammunition. Inside the Walmart bag was a cash receipt

from earlier that same day (at 16:55, or 4:55 p.m., on May 5, 2008), for the

purchase of the ammunition. The police obtained video surveillance footage from

Walmart, generated at the time of the purchase on the receipt, which showed an

individual matching the defendant’s physical description purchasing ammunition

while wearing a black “do-rag” on this head. 3

A manhunt began for the defendant involving the BCPD, the U.S.

Marshall’s Office, and the FBI. The police began with the defendant’s cell phone

records. 4 They noticed he had been repeatedly calling a number in Oakland,

California. Detective Humphrey testified that the last ping on the cell phone being

used by the defendant occurred in Fort Smith, Arkansas, and then the phone went

dead. At that point, the police subpoenaed the phone records for the Oakland

number the defendant had been calling, and as soon as the defendant’s phone was

no longer being used, an Arkansas cell phone began calling the Oakland number.

The police called the Arkansas cell phone number and a truck driver answered.5

The police asked the truck driver if a black male named Robert was riding in the

eighteen-wheeler with him. The driver replied, “[H]e was, but he’s not now,”

3

A witness, Sharon Moore, testified that she had a relationship with the defendant in 2008, and

that, on May 5, 2008, he asked her to buy some bullets for him because he was working on the

railroad in some bad neighborhoods. The defendant also tried to borrow money from Ms. Moore

to buy the bullets, but she did not give him any money. Ms. Moore testified that she

accompanied the defendant to buy the bullets at the Walmart in Minden.

4

When the defendant abandoned the white Kia, he left a black bag with a Mason insignia on the

front, in the back seat, which contained his personal cell phone. The police ascertained that, after

the murders and after abandoning his cell phone in the Kia, the defendant began using his sister’s

cell phone. The defendant took his sister’s cell phone on his four-day flight from justice, which

law enforcement traced to ultimately track down the defendant. The black Mason bag and its

contents, including the defendant’s abandoned cell phone, were not admitted at trial for lack of

evidentiary value and that property was retained by the BCPD.

5

On first obtaining the name and address of the Arkansas cell phone’s owner (an elderly lady

living in Arkansas), law enforcement contacted her to ascertain that she was safe, and she

informed law enforcement that the cell phone was used by her husband, who was a truck driver.

4

relating that Robert had gotten into another eighteen-wheeler, which had been

directly behind him at a weigh station in Spokane, Washington. The Arkansas

truck driver told the police that he had picked Robert up in East Texas,6 and Robert

had borrowed his cell phone to make some calls after the battery went dead on his

phone. The Arkansas truck driver disclosed that he and the second truck driver,

with whom the defendant thereafter hitched a ride, had been issued tickets at the

Spokane weigh station. The police contacted the weigh station and learned that the

truck the defendant was traveling in was a Swift Transportation eighteen-wheeler.

The police contacted Swift Transportation and learned that the eighteen-wheeler in

which the defendant was traveling was bound for Oakland, California. Through

GPS tracking, they located the Swift truck in Lewiston, Idaho, where it was

making a warehouse pick-up.

The BCPD communicated to the Lewiston Police Department (“LPD”) that

a murder suspect was a passenger in a Swift eighteen-wheeler in their jurisdiction

and gave the location. On May 9, 2008 the LPD stopped the eighteen-wheeler in

Lewiston, Idaho, and they arrested the defendant.7 The defendant and the truck

driver were the only occupants of the eighteen-wheeler, and the driver was not

suspected of, or charged with, any crimes. The police searched the eighteen-

wheeler, and found a loaded, silver handgun on the floorboard behind the

passenger seat where the defendant had been seated. The weapon was not in a

6

The police learned that after the murders, the defendant’s brother, Spartacus McCoy, had given

him a ride to Lindale, Texas. Spartacus was initially charged as an accessory to first degree

murder. He gave a statement to police, but by the time of trial, Spartacus was deceased. The

State did not oppose the defense motion in limine to exclude that statement and it was not

introduced at trial. According to the PSI prepared by the Probation and Parole Division

following the verdicts in this case, the police also charged another brother of the defendant,

Carlos McCoy, as an accessory after the fact. Carlos McCoy pled not guilty, and the case was

continued without date on June 1, 2009.

7

A video dashboard camera, mounted in one of the LPD patrol cars showed the defendant being

removed from the eighteen-wheeler, placed under arrest, and put in a patrol car. At that time, the

defendant was wearing a black “do-rag.”

5

holster or bag, and the safety was not on.8 The truck driver denied having a gun or

any knowledge of a gun being in his truck. The LPD also seized from the

defendant a cell phone and his wallet, which contained a pay stub, a birth

certificate, a social security card, identification cards, insurance cards, and credit

cards, all in the name of Robert McCoy, though the defendant had given the name

of “Vance McCoy.”

On May 12, 2008, while awaiting extradition to Louisiana, the defendant

unsuccessfully tried to hang himself with a bed sheet. The defendant was returned

to Louisiana on May 14, 2008.

On May 15, 2008 the defendant appeared, by video, at a 72-hour hearing,

and the court appointed the Indigent Defender Board to represent him. On May

29, 2008 a Bossier Parish grand jury indicted the defendant for the May 5, 2008

first degree murders of Christine Colston Young, Willie Ray Young, and Gregory

Lee Colston, alleging in each instance a violation of LSA-R.S. 14:30(A)(3)

(murder when “the offender has a specific intent to kill or to inflict great bodily

harm upon more than one person”). On June 17, 2008 the defendant entered a plea

of not guilty to the charges at the formal arraignment.

On July 1, 2008 the State gave its notice of intent to seek the death penalty

against the defendant. Thereafter, the defense moved for the appointment of a

sanity commission to evaluate the defendant’s mental capacity to understand the

proceedings against him and to assist in his defense. The trial court ordered Dr.

Richard Williams, a psychiatrist, and Dr. Mark Vigen, a clinical psychologist, to

examine the defendant, which they did and by agreement submitted their findings

8

The gun seized from the eighteen-wheeler in which the defendant was traveling was a .380

caliber Tanfoglio pistol, model Tital II, serial number EB06206. That gun was admitted into

evidence at trial, as State Exhibit Number 74 (“S-74”). A firearms examiner tested the weapon

and the evidence, and conclusively determined that the bullet that killed Willie Young, which

was removed from his brain during autopsy, was fired from S-74, and all four cartridge casings

found at the scene at 19 Grace Lane were conclusively determined to have been fired from S-74.

A forensic pathologist testified that Christine Colston Young and Gregory Colston suffered exit

wounds, meaning the bullets that killed them passed through their skulls and exited.

6

by report to the court. At a hearing held on November 14, 2008 the trial court

noted that both experts found the defendant competent to stand trial.9

Thereafter, both the State and the defense filed motions for discovery and

inspection, and the defendant filed a variety of pro se motions into the record,

including subpoena requests for a number of witnesses.10 The State filed motions

to quash the defendant’s pro se subpoena requests, asserting that the testimony of

the individuals, sought by the defendant to be subpoenaed, had no evidentiary

value or relevance to contribute to the case and that the defendant’s actions were

“meant to harass and unduly delay this matter.”

On December 6, 2009 the defendant wrote to the trial court advising that a

conflict of interest had arisen between him and the public defender’s office, and he

sought to represent himself until additional counsel could be retained and

enrolled.11 On January 12, 2010 the trial court held a hearing, initially slated to

address the motion to quash subpoenas, but after the defendant announced to the

court that he had a conflict of interest with the public defender’s office and that his

9

As discussed hereinafter, the defendant was not found to suffer from mental retardation or

intellectual disability, as defined by LSA-C.Cr.P. art. 905.5.1 (“[N]o person with an intellectual

disability shall be subjected to a sentence of death . . . .”). The sanity commission experts

evaluated the defendant’s full scale IQ at 89, his verbal IQ at 95, and his performance IQ at 83.

10

The group of individuals the defendant sought to have subpoenaed included, among others: a

Caddo Parish juvenile court judge, an FBI agent, and Senator David Vitter. The defendant also

sought to subpoena a newspaper columnist, Loresha Wilson, who wrote several articles in the

local newspaper about the defendant and the triple homicide. The trial court subsequently

quashed the defendant’s pro se subpoenas issued to Senator Vitter and to the local newspaper

columnist because they were not filed in proper form.

11

In his pro se filing, the defendant stated that he was representing himself, after a breakdown in

his relationship with the public defender’s office on April 16, 2009, when attorney Craig

Forsythe and “private investigator Shanks” came to the jail to meet with him. The defendant

asserted that Mr. Forsythe “cursed [him] like a dog!” During a subsequent April 24, 2009

meeting with Mr. Forsythe and Mr. Shanks, the defendant indicated that he tried to discuss

information with them about his alibi defense, his whereabouts, and the subpoenas he wanted

issued, which information he stated that he had already given to his public defender, Pam Smart,

and Mr. Shanks stated to the defendant that they had not received any information about

subpoenaing those witnesses. The defendant said he then stated to Mr. Forsythe and Mr. Shanks,

“I told them that’s the exact reason why I don’t trust them!” Whereupon, the defendant stated

that Mr. Forsythe began to curse him, and he (the defendant) “dismissed [himself] from the

meeting.” The defendant stated that he reported the incident to “Chief Defender Phillips” and

“informed him of the incident and dismissal of counsel.”

7

family would be hiring an attorney, the trial judge recessed the hearing until the

counsel issue could be resolved.

On February 11, 2010 after the trial judge gave the defendant a full

recitation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966), the defendant waived those rights and asserted his right to

represent himself under Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525,

2541, 45 L.Ed.2d 562 (1975). After interrogating the defendant, the trial judge

ascertained that the defendant merely sought to represent himself “until my

[retained] counsel enrolls next month.” The defendant assured the judge that even

if counsel did not enroll, he would still be prepared to go to trial on the previously

set date of May 24, 2010.

On March 1, 2010 Larry English filed a motion to enroll as counsel for the

defendant, and Mr. English appeared in open court two days later to formally

enroll. Mr. English admitted to the court that he was not certified to try death

penalty cases but that he had made calls to board certified lawyers in order to

assemble a legal team to try the case. The trial judge informed the defendant that

his new attorney was not certified in death penalty cases, and the defendant

acknowledged that he understood that and still wished to go forward with Mr.

English as his attorney. Then Mr. English filed a motion to continue the trial,

which the judge denied because the defendant had filed a pro se motion for speedy

trial on January 13, 2010 and the case had already been set for trial at least once

before. Thereafter, the trial judge relieved the public defender’s office from its

representation of the defendant.

On April 16, 2010 Mr. English took a writ to the Second Circuit on the trial

court’s denial of his motion to continue. While that writ application was pending,

the trial court held an additional hearing, on April 23, 2010, on the defendant’s

motion to continue, at which time Mr. English reported that he was “having trouble

8

. . . putting together a legal team to represent Mr. McCoy because nobody wants to

step into a capital murder case that they’ve got to go to trial on within such a short

period . . . . I’m still not up to speed or nearly ready to undertake the representation

of Mr. McCoy.” After the defendant and counsel assured the trial judge that they

were withdrawing the defendant’s speedy trial motion, the judge reset the trial date

to February 7, 2011, which he deemed “a hard . . . date.” The trial judge also

warned counsel: “Mr. English, I want you to understand that if I grant this

continuance you will not be allowed to withdraw.” Subsequently, the Second

Circuit noted that the trial court had granted the defendant’s motion to continue,

and the writ was withdrawn. See State v. McCoy, 45,623 (La. App. 2 Cir.

5/20/10).

On March 12, 2010 the State filed its notice of intent to use evidence of

other acts and/or crimes at trial, pursuant to LSA-C.Cr.P. art. 720 and LSA-C.E.

art. 404(B). Specifically, the State’s notice covered “[a]ll evidence from the

criminal investigation of the incident that occurred on or about the 2nd day of

April, 2008 concerning Yolanda Colston.” The defense responded by filing a

motion in limine to exclude “any prior bad acts” of the defendant from trial. The

parties argued the motions before the court on November 16, 2010, with the State

urging that the issue of the defendant’s aggravated battery against Yolanda Colston

constituted res gestae because “that’s what caused [the defendant] to come into

contact with these victims on that particular night.” The trial judge agreed and

granted the State’s motion to admit other crimes evidence. The defense counsel

noticed his intent to seek writs, which were subsequently denied by the appellate

court “on the showing made.” See State v. McCoy, 46,266 (La. App. 2 Cir.

1/6/11) (unpublished).

On December 14, 2010 Mr. English filed a motion requesting the trial court

to declare the defendant indigent, for purposes of obtaining funds through the

9

Louisiana Public Defender Board, so that the defense could hire a mitigation expert

and investigator, a social worker, and a mental health expert, which was heard by

the trial court on January 4, 2011. Mr. English disclosed to the court that

mitigation experts were necessary should there be a guilty verdict in the case, but

the defendant disagreed with that defense strategy. Mr. English further informed

the court that the defendant had directed him not to proceed with the motion to

declare him indigent, but Mr. English stated that to follow the defendant’s directive

would not be in the defendant’s best interest, opining that his client was suffering

from “severe mental and emotional issues that ha[ve] an impact upon this case.”

Mr. English asked the trial court to “order that Mr. McCoy submit to the experts

that are required in a capital murder case.”

In addition, numerous motions filed by the defendant, pro se, were addressed

during the January 4, 2011 hearing, concerning which Mr. English stated: “I do

not adopt those motions. I’ve asked [the defendant] not to file those motions . . . . I

do not believe it’s in his best interest to do so . . . . [T]here may be some statements

or documents in there that I believe . . . may be detrimental to his case given the

overwhelming . . . evidence that is against him.” Mr. English also indicated that he

was satisfied with the discovery response by the State, which he said had

“provided us with all of the evidence in this case.” The district attorney confirmed

that the State had given “open file” discovery to the defense. At the conclusion of

the hearing, the defendant acquiesced in withdrawing his various pro se motions.

Thereafter, the State realized that declaring the defendant indigent triggered

Rules of the Supreme Court of Louisiana, Rule XXXI (“In any capital case in

which a defendant is found to be indigent, the court shall appoint no less than two

attorneys to represent the defendant . . . .”) and that since Mr. English’s enrollment

10

there had been only one attorney representing the defendant.12 Accordingly, on

January 24, 2011, the State filed a “Motion to Determine Waiver of Co-Counsel,”

requesting a contradictory hearing “to determine defendant’s waiver of co-counsel

at defendant’s capital murder trial.” On that same day, the trial court held a

hearing on the motion, during which the district attorney stated that he filed the

motion to “get Mr. English and/or Mr. McCoy’s position.” Mr. English advised

the court that although another attorney, James Gray, had been advising him about

the case, neither Mr. Gray nor any other attorney would be participating in the trial

of the case, and he was comfortable trying the case single-handedly. 13 The trial

judge questioned the defendant about the issue, and the defendant informed the

court that, even though Mr. English was not capital certified, he waived the Rule

XXXI two-attorney representation standard because he did not want to have the

public defender’s office reappointed to his case. Also during the January 24, 2011

hearing, Mr. English orally requested a continuance of the February 7, 2011 trial

date to further develop mitigation evidence. The trial court denied the defense

motion to continue the trial date, and the defense thereafter filed an application for

review with the appellate court.

Initially, the appellate court denied the writ application because the defense

“failed to provide this Court with any documentation that the motion to continue

was ever filed or ruled upon by the trial court.” State v. McCoy, 46,387 (La. App.

2 Cir. 2/1/11) (unpublished). However, on the following day, the appellate court

issued a stay of the proceedings and, thereafter, issued a ruling granting the writ,

lifting the stay, and remanding the case with instructions. State v. McCoy, 46,387

12

Mr. English clarified to the court that, despite having filed a motion in the matter, attorney

Carlos Prudhomme had “not been involved in the case” and would “not be helping . . . handle the

trial.”

13

Mr. English admitted to the trial court that, while he anticipated trying the case alone, he had

relied on both Pam Smart and James Gray of the Public Defender’s Office for assistance in

preparing for trial.

11

(La. App. 2 Cir. 2/2/11) (unpublished); State v. McCoy, 46,394 (La. App. 2 Cir.

2/3/11) (unpublished). In its ruling, the appellate court expressed concern that the

defendant was proceeding to trial with only one defense attorney, who was not

certified as qualified to defend capital cases. Id., 46,394 at p. 2. The appellate

court granted the writ and remanded the case back to the trial court to grant the

defendant a continuance of the trial date,14 directing the trial court to also “ensure

that Mr. McCoy is, or has been, fully apprised on the record of the benefits of

having two capital-defense qualified attorneys and that McCoy has knowingly and

intelligently waived same.” Id., 46,394 at p. 3.

In response to the appellate court’s February 3, 2011 ruling, the State

immediately filed a “Motion to Appoint Additional Counsel,” and, on the same

day, the trial court held a hearing on the motion to address the concerns voiced by

the appellate court. In addition to the district attorney and defense counsel of

record, a representative from the local public defender’s office, Randall Fish, was

present at the February 3, 2011 trial court hearing, during which the court and the

parties discussed whether the defendant could continue to be represented by

retained counsel and also be entitled to the appointment of two capital-qualified

attorneys through the public defender’s office. The defendant unequivocally

declined assistance from the public defender’s office, stating: “I don’t want the

Court to put counsel on me . . . that I don’t want.” The trial judge and the district

attorney questioned the defendant as to his waiver of counsel under Rule XXXI,

and the defendant affirmed that he voluntarily waived the public defender’s office

being appointed as co-counsel in his case. The defendant stated that he was

14

In support of his argument that a continuance of the trial date was needed, defense counsel

submitted to the appellate court documentation from the mitigation experts, containing “an

explanation from the experts of the time required to conduct a meaningful study suitable for use

as evidence in a criminal trial,” which the appellate court recognized had not been submitted to

the trial court. Id., 46,394 at p. 2. The appellate court noted that, at the time of the January 24,

2011 hearing, “[d]espite a trial date approximately one month away and despite a nearly year-old

promise [by Mr. English] to ‘assemble a team,’ evidently no work had been done in this capital

case to develop this evidence.” Id.

12

“totally opposed to that and most of all . . . I choose not to be strong armed to take

a public defender’s aspect of secondary counsel when that’s totally against my

wishes.” Based on the defendant’s repeated assurances that he was knowingly and

voluntarily waiving the appointment of additional counsel, the trial judge denied

the State’s motion for appointment of a second trial counsel, and a trial date of July

28, 2011 was set.

On July 12, 2011 the trial court held a hearing to address the State’s motion

for discovery, which requested written notice from the defendant of his intention to

offer a defense of alibi, and the State’s motion to quash various subpoena requests

issued by the defendant in proper person. As to the former, Mr. English informed

the court that “[w]e have no alibi evidence in this case,” notwithstanding the

defendant’s pro se notice of intent to offer an alibi. As to the defendant’s pro se

subpoena requests, the State asserted they were not in proper form, and Mr.

English replied, “I do not adopt any of the subpoenas that Mr. McCoy has filed.

He has done that against my advice.” The trial court did not quash the pro se

subpoenas on that date, but reserved his decision until a later date.

On July 26, 2011 two days before the trial was slated to begin, the court held

a hearing in which Mr. English reported that he learned over the weekend of the

defendant’s “intention to terminate my services.” After the trial judge fully

advised the defendant of his rights under Miranda, the defendant disclosed that

Mr. English would not be his lawyer going forward. The trial judge informed the

defendant, “[T]hat’s my determination at this point.” The defendant claimed that

his parents had retained two new attorneys, although those attorneys were not in

court at the July 26th hearing. The defendant asserted that Mr. English has been

“trying to . . . make me cop out to three counts of first degree murder. Didn’t want

me to go to trial.” Mr. English informed the court that he and the defendant had an

irrevocable disagreement as to the trial strategy. Relying on State v. Bridgewater,

13

the trial judge denied the defendant’s motion to substitute counsel as untimely,

given that the lawyers the defendant was seeking to enroll were not present in court

that day and trial was slated to commence in two days. See State v. Bridgewater,

00-1529 (La. 1/15/02), 823 So.2d 877, on rehearing, 00-1529 (La. 6/21/02), 823

So.2d 877, 909, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089

(2003). Accordingly, the trial judge ordered Mr. English to remain counsel of

record. Moments after the trial court’s ruling that the defendant’s request to

discharge counsel was untimely, the defendant made a one-sentence invocation of

his right to self-represent, which the court disposed of as untimely under State v.

Bridgewater.

Voir dire commenced on July 28, 2011, and jury selection of twelve jurors

and two alternate jurors was completed on August 2, 2011. Trial on the merits

commenced on August 3, 2011, and the State gave its opening statement.

Thereafter, Mr. English gave an opening statement in which he conceded guilt,

stating, “I’m telling you Mr. McCoy committed these crimes,” but he asserted that

the defendant was suffering “from serious emotional issues” that inhibit his ability

“to function in society and to make rational decisions.” Accordingly, Mr. English

urged the jury to consider this case in terms of a second degree murder trial.

The State presented its case through the testimony of eleven witnesses and

100 exhibits before resting its case-in-chief. On August 4, 2011 Mr. English

announced to the court that, against the advice of counsel and warnings of a

possible perjury indictment, the defendant had elected to testify. The trial judge

advised the defendant of his rights under Miranda, and the defendant

acknowledged that he understood those rights and wished to testify. Thereafter,

the defendant testified to his alibi defense and sought to refute the State’s evidence

14

with his theories of a vast conspiracy that landed him on trial for his life. 15 The

district attorney cross-examined the defendant, after which the defense rested its

case. After deliberations on August 4, 2011, the jury returned a unanimous verdict

of guilty as charged on all three counts.

The penalty phase was held on August 5, 2011. The State called five victim

impact witnesses: (1) Yolanda Colston (mother of victim Gregory Colston, and

daughter/step-daughter of victims Christine Colston Young and Willie Young); (2)

Lorenzo Evans (friend of Gregory Colston); (3) Kent Falting (teacher and coach of

Gregory Colston); (4) Eric Davis (son of Christine Colston Young); and (5)

Pauline Miles (sister of Willie Young). Thereafter, the defense called one

mitigation expert, Dr. Mark Vigen.16 After deliberation, the jury returned a verdict

15

At trial, the defendant denied committing an aggravated battery upon his estranged wife,

Yolanda Colston. He also denied owning a gun and suggested that the Idaho police had planted

the murder weapon in the eighteen-wheeler as part of a conspiracy with BCPD Detective

Humphrey. The defendant further denied spending the night with Sharon Moore the night before

the murders or that he asked her for money to buy bullets, suggesting that the district attorney

had “concocted that story.” The defendant testified that he went out-of-state on April 21, 2008,

after Officers Joshua Bounds and Richard McGee came to his house and beat him in the face

with a weapon. The defendant stated that those officers stole his car on April 18, 2008, so he

could not have been the person seen running from the white Kia on the police cruiser dashcam

video recorded on May 5, 2008. The defendant claimed that he never returned to Bossier City.

He explained that he had let his good friend, Robert Evans, a truck driver, use his cell phone, and

it was Robert Evans who was calling Sharon Moore around the time of the murders because he

had “offered” Sharon Moore to Mr. Evans, although “she didn’t think highly of that.” The

defendant further claimed that Detective Humphrey threatened to kill him because he was going

to expose corruption in the police department involving Officers Bounds and McGee, all of

whom the defendant described as being “very strongly in drugs.” The defendant further testified

that the “Robert” that Christine Colston Young was screaming at on the 911 tape was really

Robert Thomas, a drug-dealing cop who owned White Automotive off Barksdale. The defendant

theorized that Mr. Thomas killed the victims because Willie Young was transporting drugs for

them and owed them a debt of $2,500. The defendant claimed that Robert Evans hitched a ride

with the truckers, not him. The defendant stated that he was in Houston on the night of the

murders, and the reason that calls were being initiated from his cell phone in Bossier and Caddo

Parishes on the day of, and day after, the murders was because Mr. Evans had his cell phone.

The defendant denied ever attempting to commit suicide. He claimed that the officers made that

up to cover-up the fact that they had beaten him. The defendant testified that he had been unable

to subpoena any of his witnesses, relating that he had wanted to call to the stand FBI Agent J.T.

Coleman, who investigated alleged drug-dealing activities of Officers Richard McGee and

Robert Thomas. He said that he also wanted Senator David Vitter to be subpoenaed for trial

because “I know Mr. David Vitter personally and [he] knows everything that goes on with me.”

The defendant testified that those witnesses would have corroborated all that he was saying.

16

Dr. Vigen testified that the defendant “is one of those people that can lie to themselves so

extensively and for such a long period of time that they ultimately end up believing what the lie

is.”

15

recommending the sentence of death on all three counts, finding that the State

proved one of the three aggravating circumstances advanced, 17 namely that the

offender knowingly created risk of death or great bodily harm to more than one

person.

On December 6, 2011 attorneys from the Louisiana Capital Assistance

Center appeared before the trial court and filed a motion for new trial and a motion

in arrest of judgment on the defendant’s behalf. Appellate counsel filed a

supplemental motion for new trial on January 17, 2012. The trial court held a

hearing on the defendant’s post-verdict motions on January 23, 2012, and at the

conclusion, denied the motion for new trial. The defendant waived delays, and the

trial court formally imposed the sentence of death in accordance with the jury’s

verdict.

On August 8, 2012 appellate counsel filed a “Second Motion for New Trial.”

The trial court subsequently ruled that the second motion for new trial was

untimely filed. A writ application was denied by the appellate court “on the

showing made.” State v. McCoy, 48,083 (La. App. 2 Cir. 1/17/13) (unpublished).

This court also denied review. State v. McCoy, 13-0400 (La. 4/5/13), 110 So.3d

1067.

The defendant now appeals his convictions and death sentences on the basis

of sixteen assignments of error: (1) the defendant’s right to counsel of choice was

violated when the trial court denied his request to discharge and substitute trial

counsel prior to trial; (2) the trial court erred in denying the defendant’s right to

self-representation; (3) the trial court erred in failing to conduct a hearing and grant

the defendant’s request for substitution of counsel on his showing that trial counsel

17

The State relied on three aggravating circumstances, pursuant to LSA-C.Cr.P. art. 905.4(A)(1)

(“The offender was engaged in the perpetration or attempted perpetration of . . . aggravated

burglary . . . .”); LSA-C.Cr.P. art. 905.4(A)(4) (“The offender knowingly created a risk of death

or great bodily harm to more than one person.”); and LSA-C.Cr.P. art. 905.4(A)(7) (“The offense

was committed in an especially heinous, atrocious or cruel manner.”).

16

was incompetent or otherwise unable to furnish adequate representation; (4) the

trial court erred in ruling that trial counsel, rather than the defendant, could decide

whether to concede guilt of murder; (5) the defendant’s right to counsel was denied

when he was involuntarily represented by trial counsel who conceded his guilt

against his express instructions and entirely failed to adversarially test the State’s

case; (6) the defendant’s right to conflict-free counsel was violated when his trial

counsel actively represented interests contrary to the expressed interests and

objectives of the defendant; (7) the defendant’s rights to compulsory process, to an

impartial jury trial, to plead not guilty, to present a defense, to confront witnesses,

to require the State to prove guilt beyond a reasonable doubt, and to a fair trial

were violated when trial counsel advocated his guilt of second degree murder; (8)

the trial court erred in failing to appoint certified indigent counsel; (9) the trial

court erred in denying the defendant’s motion to suppress the statement of Gayle

Houston as untimely; (10) the State exercised peremptory challenges based on the

race of prospective jurors in violation of state and federal equal protection clauses

and LSA-C.Cr.P. art. 795; (11) the trial court erred in failing to give a “lesser-

included offense” instruction; (12) the trial court erred in permitting “untested,

unnoticed, unadjudicated act evidence” at the penalty phase, in violation of State

v. Jackson, 608 So.2d 949 (La. 1992), the Eighth Amendment, and due process;

(13) the trial court erred in admitting victim impact evidence from the basketball

coach of one of the victims; (14) the trial court committed prejudicial error in

refusing to allow the defendant to voluntarily excuse himself from being present at

trial; (15) the trial court erred in dismissing the defendant’s “Second Motion for

New Trial,” without reaching any of the merits, pursuant to an incorrect

application of LSA-C.Cr.P. art. 853(B); and (16) the trial court erred in failing to

hold a renewed competency hearing in violation of LSA-C.Cr.P. art. 643 and

procedural due process. The defendant has urged no challenge to the sufficiency

17

of the evidence used to convict him of three counts of first degree murder.

LAW AND ANALYSIS

Right to Counsel of Choice

In his first assignment of error, the defendant contends that the trial court

erred in denying his pretrial motion to discharge Mr. English as his trial counsel

and to substitute another attorney as defense counsel, as the defendant contends a

conflict arose between the defendant and Mr. English concerning the manner of

trial defense to be presented.

The Sixth Amendment to the U.S. Constitution provides that “[i]n all

criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his

defence.” An accused’s right to counsel is echoed in Louisiana Constitution,

Article I, Section 13, which states that “[a]t each stage of the proceedings, every

person is entitled to assistance of counsel of his choice, or appointed by the court if

he is indigent and charged with an offense punishable by imprisonment.” See also

LSA-C.Cr.P. art. 511 (“The accused in every instance has the right to defend

himself and to have the assistance of counsel. His counsel shall have free access to

him, in private, at reasonable hours.”).

The Supreme Court has recognized the efficacy of having the assistance of

counsel during the adversarial procedure of a criminal trial. Wheat v. United

States, 486 U.S. 153, 158-59, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988)

(“[T]he Sixth Amendment secures the right to the assistance of counsel, by

appointment if necessary, in a trial for any serious crime.”) (citing Gideon v.

Wainwright, 372 U.S. 335, 343-44, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963)).

Although “the essential aim of the Amendment is to guarantee an effective

advocate for each criminal defendant,” the Sixth Amendment also encompasses

“the right to select and be represented by one’s preferred attorney.” Wheat v.

United States, 486 U.S. at 159, 108 S.Ct. at 1697.

18

The denial of a criminal defendant’s right to retained counsel of choice is a

violation of the Sixth Amendment and a structural error, requiring reversal.

United States v. Gonzalez-Lopez, 548 U.S. 140, 148-50, 126 S.Ct. 2557, 2564,

165 L.Ed.2d 409 (2006). When the right to be assisted by counsel of one’s choice

is wrongly denied, no harmless error analysis inquiring into counsel’s effectiveness

or prejudice to the defendant is required:

Deprivation of the right is “complete” when the defendant is

erroneously prevented from being represented by the lawyer he wants,

regardless of the quality of the representation he received. To argue

otherwise is to confuse the right to counsel of choice - which is the

right to a particular lawyer regardless of comparative effectiveness -

with the right to effective counsel - which imposes a baseline

requirement of competence on whatever lawyer is chosen or

appointed.

Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. at 2563.

The assistance of counsel may be secured in various ways, including: the

hiring of an attorney’s services by the criminal defendant or by another on behalf

of the defendant, the attorney’s volunteering of services pro bono, or the court’s

appointment of private counsel or the public defender if the defendant is indigent.18

State v. Reeves, 06-2419, p. 35 (La. 5/5/09), 11 So.3d 1031, 1055, cert. denied,

558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009). However, in order to

exercise the right to choose a particular attorney, a defendant must have the means

to obtain and afford the services of said counsel, whereas an indigent defendant has

a right to “appointed” counsel, but does not have the right to have a particular

attorney appointed. State v. Sims, 07-2216, p. 1 (La. 11/16/07), 968 So.2d 721,

722 (“A defendant is guaranteed the right to counsel of choice so long as the

defendant can obtain and afford the services of said counsel.”); State v. Jones, 97-

18

See LSA-C.Cr.P. art. 512 (“When a defendant charged with a capital offense appears for

arraignment without counsel, the court shall provide counsel for his defense in accordance with

the provisions of R.S. 15:141 et seq. . . .”); LSA-C.Cr.P. art. 515 (“Assignment of counsel shall

not deprive the defendant of the right to engage other counsel at any stage of the proceedings in

substitution of counsel assigned by the court. The court may assign other counsel in substitution

of counsel previously assigned or specially assigned to assist the defendant at the arraignment.”).

19

2593, pp. 2-3 (La. 3/4/98), 707 So.2d 975, 976; State v. Rideau, 278 So.2d 100,

103 (La. 1973) (“An indigent defendant is not entitled to choose a certain

lawyer.”). 19

The Sixth Amendment right to choose one’s own counsel is circumscribed in

several important respects. Wheat v. United States, 486 U.S. at 159, 108 S. Ct. at

1697; State v. Reeves, 06-2419 at pp. 35-36, 11 So.3d at 1055-56. See also

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-26, 109 S.Ct.

2646, 2652-53, 105 L.Ed.2d 528 (1989). Regardless of his persuasive powers, an

advocate who is not a member of the bar may not represent clients, other than

himself, in court. Wheat v. United States, 486 U.S. at 159, 108 S. Ct. at 1697.

Similarly, a defendant may not insist on representation by an attorney he cannot

afford or who for other reasons declines to represent the defendant. Id. Nor may a

defendant insist on the counsel of an attorney who has a previous or ongoing

relationship with an opposing party, even when the opposing party is the

government. Id.

The Supreme Court has stated unequivocally that a criminal defendant who

has been appointed counsel has no right under the Sixth Amendment to the counsel

of his choice:

The Amendment guarantees defendants in criminal cases the right to

adequate representation, but those who do not have the means to hire

their own lawyers have no cognizable complaint so long as they are

adequately represented by attorneys appointed by the courts. “[A]

defendant may not insist on representation by an attorney he cannot

afford.”

Caplin & Drysdale, 491 U.S. at 624, 109 S.Ct. at 2652 (quoting Wheat, 486 U.S.

at 159, 108 S.Ct. at 1697). This distinction was again noted by the Supreme Court

in United States v. Gonzalez-Lopez, 548 U.S. at 151, 126 S.Ct. at 2565, wherein

19

See also State v. Sims, 07 2216, p. 1 (La. 11/16/07), 968 So.2d 721, 722 (per curiam) (“The

right to private, non-appointed counsel of choice does not distinguish between a paid attorney

and a pro bono lawyer.”).

20

the Court held that “the right to counsel of choice does not extend to defendants

who require counsel to be appointed for them.”

A defendant’s right to choose his counsel only extends so far as to allow the

accused to retain the attorney of his choice if he can manage to do so, but that right

is not absolute. State v. Harper, 381 So.2d 468, 470-71 (La. 1980); State v.

Leggett, 363 So.2d 434, 436 (La. 1978); State v. Mackie, 352 So.2d 1297, 1300

(La. 1977). See also Caplin & Drysdale, 491 U.S. at 626, 109 S. Ct. at 2652

(“Whatever the full extent of the Sixth Amendment’s protection of one’s right to

retain counsel of his choosing, that protection does not go beyond ‘the individual’s

right to spend his own money to obtain the advice and assistance of . . .

counsel.’”); State v. Brown, 03-0897, p. 11 (La. 4/12/05), 907 So.2d 1, 12,

decision clarified on rehearing, 03-0897 (La. 6/29/05), 907 So.2d 1, 36, cert.

denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006) (“[A] criminal

defendant’s right to the counsel of his choice is not absolute.”).

Furthermore, this court has consistently held that a defendant’s right to

counsel of his choice cannot be manipulated to obstruct the orderly procedure of

the courts and cannot be used to interfere with the fair administration of justice.

State v. Bridgewater, 00-1529 at p. 20, 823 So.2d at 896; State v. Seiss, 428

So.2d 444, 447 (La. 1983); State v. Champion, 412 So.2d 1048, 1050 (La. 1982).

See also State v. Givens, 99-3518, pp. 9-10 (La. 1/17/01), 776 So.2d 443, 452.

The “[d]efendant must exercise his right to counsel of his choice at a reasonable

time, in a reasonable manner[,] and at an appropriate stage of the proceedings.”

State v. Seiss, 428 So.2d at 447. A trial court, therefore, does not abuse its broad

discretion to conduct proceedings “in an orderly and expeditious manner,” as

mandated by LSA-C.Cr.P. art. 17, by denying a continuance on the morning of

trial based on the defendant’s desire to change counsel. State v. Anthony, 347

So.2d 483, 487 (La. 1977) (“The law is well settled that a defendant in a criminal

21

trial cannot, by a last minute change of counsel, force a postponement of his

trial.”).

The circumstances of State v. Seiss, supra, are analogous to the present case.

In State v. Seiss, an indigent defender was appointed to represent the defendant,

and on the day of trial the defense counsel presented a motion to withdraw so that

the defendant could substitute another defense counsel. The indigent defender

explained to the court why he should be allowed to withdraw from representation

of the defendant:

Yesterday I talked with Mr. Seiss and he emphatically informed me

that he had no desire at all for me to represent him. It is my position

that the fiduciary relationship of attorney/client is too valuable for me

to be forced to represent a client who has no confidence in my

abilities, nor is he willing to co-operate with me in any manner for me

to represent him. Given that lack of rapport between us . . . I don’t see

how the amount of exposure that he has in this matter that I should be

forced to represent him and I do not think that the administration of

criminal justice in Rapides Parish would be so unduly burdened by

allowing him, now that his indigency status has altered, he is

employed and he is financially able to hire an attorney of his own

choosing why he could not be allowed to so do and that’s basically

my position.

State v. Seiss, 428 So.2d at 446. The defendant also informed the court of his

reason for seeking to replace appointed counsel with retained counsel: “Like he

said, you know, he was appointed to me as a State lawyer and now . . . I [am]

employed and I’d like to get a lawyer of my choice.” Id. Although the defendant

claimed to have hired a replacement attorney, that attorney had not enrolled as

counsel for the defendant and was not present on the day of trial; the trial court

denied the motion to withdraw. Id. In ruling that the trial court did not abuse its

discretion in denying defense counsel’s motion to withdraw, this court stated:

This court has consistently held that this right cannot be

manipulated to obstruct the orderly procedure of the courts and cannot

be used to interfere with the fair administration of justice. State v.

Champion, 412 So.2d 1048, 1050 (La. 1982); State v. Johnson, 389

So.2d 1302, 1304 (La. 1980); State v. Jones, 376 So.2d 125, 129 (La.

1979); State v. Lee, 364 So.2d 1024, 1028 (La. 1978); State v.

Anthony, 347 So.2d 483, 487 (La. 1977). Defendant must exercise

22

his right to counsel of his choice at a reasonable time, in a reasonable

manner and at an appropriate stage of the proceedings. State v.

Champion, supra at 1050; State v. Johnson, supra at 1304; State v.

Lee, supra at 1028; State v. Leggett, 363 So.2d 434, 436 (La. 1978);

State v. Cousin, 307 So.2d 326, 328 (La. 1975). Absent a justifiable

basis, “[t]here is no constitutional right to make a new choice of

counsel on the very date the trial is to begin, with the attendant

necessity of a continuance and its disrupting implications.” State v.

Leggett, supra at 436. Once the trial date has arrived, the question of

withdrawal of counsel largely rests with the discretion of the trial

court, and his ruling will not be disturbed in the absence of a clear

showing of abuse of discretion. State v. Leggett, supra at 436; State

v. Cousin, supra at 328; State v. Boudoin, 257 La. 583, 588-89, 243

So.2d 265, 267 (1971).

State v. Seiss, 428 So.2d at 447. Likewise, in both State v. Lee, 364 So.2d at

1028, and State v. Anthony, 347 So.2d at 487, this court found no error in the trial

court’s denial of a motion to withdraw, on the defendant’s claim that another

retained counsel would be substituted, when the attorney to be substituted neither

enrolled as counsel nor appeared in court on the day the motion was heard.

During the instant prosecution, the defendant was first represented by

appointed counsel, then represented himself for approximately one month (as

discussed hereinafter), and thereafter counsel was retained by the defendant’s

family.

On May 15, 2008 at the defendant’s initial appearance before the court, he

was referred to the public defender’s office, and on June 17, 2008, when he was

arraigned, the defendant was represented by the public defender’s office.

However, the defendant’s relationship with his appointed counsel soured when the

defendant felt that no investigation was being done on his claims of innocence. In

February of 2010 the defendant declared that he would represent himself, but he

qualified that he would be doing so only “until my [retained] counsel enrolls next

month,” but assured the court that whether new counsel enrolled or not he would

still be prepared for previously-set trial date of May 24, 2010.

On March 1, 2010 retained counsel Larry English enrolled as defense

23

counsel and informed the court that while the defendant’s family “approached me

. . . about retaining my services . . . I’m basically handling this case pro bono.”20

On January 4, 2011, on motion of Mr. English, the trial court declared the

defendant indigent, so that he could apply for state funding to hire mitigation

experts. Nevertheless, Mr. English proceeded as either retained or pro bono

counsel.

When Mr. English enrolled as defense counsel on March 1, 2010, he assured

the trial court that he had begun to assemble a “legal team . . . to try this case”

since he was not a certified capital counsel, but he sought a continuance of the May

24, 2010 trial date. In denying the motion for continuance, the trial court

extensively detailed the delays that had already been encountered in bringing the

case to trial, which had been originally set for June 1, 2009, noting the fact that the

defendant had previously filed a pro se motion for speedy trial on January 13,

2010. However, an application for writs was filed with the appellate court, and

subsequently the trial court agreed to continue the May 2010 trial date to February

7, 2011, on the defendant’s agreement to withdraw his motion for speedy trial and

on Mr. English’s assurance that he would not thereafter withdraw as defense

counsel.

At a hearing held before the trial court on July 26, 2011, two days before the

commencement of the defendant’s capital trial, Mr. English stated to the court that

20

On February 3, 2011, Mr. English informed the court that “there’s a lot about me not having

capital experience - capital certified which I’m not. But I just want to put on the record and

remind the reason why I’m sitting here . . . not making any money representing Mr. McCoy

because Mr. McCoy’s family came to me and Mr. McCoy was representing himself.” Mr.

English stated to the trial court that he believed that it would be better for him to represent the

defendant than for the defendant to proceed pro se, but Mr. English reiterated, “I’m not being

paid.” The defendant then responded on the record: “Mr. English ha[s] been paid by my mom . .

. . We’re not totally . . . indigent . . . on this but they may have not paid him as much as he

choose [sic] to pay. But he has not just taken this case without any financial contributions, Your

Honor.” On the issue of Mr. English’s compensation, a typewritten letter, written in July of 2011

to the trial judge by the defendant’s parents, appears in the record and states that they

“advanced” to Mr. English $5,000 for his representation of the defendant in this capital trial,

money which they stated they borrowed against their car title.

24

he had learned over the weekend that the defendant wanted to terminate him as

defense counsel. The defendant confirmed this statement, telling the trial court

that Mr. English would not be continuing as his attorney. The trial court informed

the defendant, “[T]hat’s my determination at this point.” The defendant then stated

that Mr. English had been paid a fee, implying that he had the right to terminate

Mr. English as his counsel. The defendant expressed frustration as to Mr.

English’s refusal to adopt his alibi defense and to the fact that Mr. English was

“trying to make [him] cop to all three counts of murder,” indicating these factors

had caused a breakdown in the attorney-client relationship. The defendant also

claimed to have two new defense attorneys “on standby” ready to enroll “as soon

as Mr. English is taken out of my case,” and the defendant assured the trial judge

that these two new attorneys were “ready to proceed [to] trial,” scheduled to begin

two days later, and that there would “be no . . . delays.” However, when the trial

court asked the defendant if these replacement attorneys were present in the

courtroom, the defendant replied “no.” The defendant was further unable to tell

the trial court the names of his new defense attorneys, but argued to the court that

he was credible about the fact that new counsel would enroll as he stated. 21 The

trial court then denied the defendant’s request to discharge Mr. English and

substitute counsel, stating:

[I]n anticipation of this motion and in looking up the law in this

motion, I’ve looked at State of Louisiana versus Roy Bridgewater that

is cited at 823 So.2d 877 . . . . Mr. McCoy, there have been times that

21

On this issue, the defendant stated:

I just want to bring back to the Court’s remembrance when I dismissed [public

defender] Ms. Pam Smart. I didn’t have a standby lawyer here then, Your Honor.

And when I spoke to you about Mr. English enrolling he enrolled in the same and

proper fashion in which, you know, I told you he would enroll, Your Honor. I

was creditable of my word. I was creditable of the things that I spoke to you

about in that aspect, Your Honor. And I’m still creditable about this aspect.

These attorneys have -- are very familiar with this case. They have been standing

by and vindicating things with the case; they are very familiar with this case,

Your Honor. That’s why they’re not going to need any continuance hiring for this

case; they’re very familiar with it.

25

you have been represented by the Public Defender’s Office. There

was a time that you had attempted to represent . . . yourself . . . . [Y]ou

have been represented by Mr. English. And the case stands for the

right -- you do have the right to choose counsel but that counsel

cannot be chosen when it is an attempt to obstruct the Court’s orderly

procedure or to interfere with a fair administration of justice. And it

states that . . . “In order for the defendant to exercise his right to

counsel he must exercise his right to counsel of his choice at a

reasonable time, in a reasonable manner, and at an appropriate stage

of the proceedings.” This matter has been set since February. This

matter has been under a scheduling order at least two different times.

The case was continued by the Louisiana Second Circuit Court of

Appeal in February and was continued to this term, which I

specifically set aside in order to be able to have this hearing. We are

two days before the hearing date . . . . [T]hese two attorneys that you

state are going to represent you are not in this courtroom at this time.

They have not come before this Court and asked to enroll in this case.

Even if they were to enroll there would have to be assurances that

they were prepared to go to trial on Thursday. So based on the fact

that this is not a timely request and this Court also takes into

consideration that even if there are irreconcilable differences between

counsel and the person that is accused of a crime that the

[Bridgewater] Court said that . . . “A right to counsel choice must be

made in a timely manner. It must be the choice at a reasonable time,

and a reasonable manner, and at an appropriate stage of the

proceedings.” This is not an appropriate stage of the proceedings.

There is no counsel that is present today to state that they would

enroll. And therefore, I deny Mr. English being relieved at this time

and he will remain as counsel of record and this case will go to trial

on Thursday.

Having carefully examined the trial court record in this matter, we are

unable to say the trial court erred in its finding that the defendant’s motion to

substitute counsel was untimely and constituted an attempt “to obstruct the Court’s

orderly procedure or to interfere with a fair administration of justice.” Although

the defendant asserts that he was unaware of Mr. English’s alleged refusal to

pursue his claims of innocence as a defense and therefore unable at an earlier point

in the proceedings to bring the alleged irreconcilable differences to the attention of

the trial court and to seek a substitution of counsel, the record reflects that

differences in the defendant’s expectations for his defense and Mr. English’s trial

strategy were evident to the court and the parties as early as a December 14, 2010

hearing before the court, wherein the defendant and Mr. English discussed their

26

disagreements before the trial court.

During the December 14, 2010 hearing (held on motion of Mr. English to

have the defendant declared indigent so that public funds could be made available

to hire mitigation experts), the trial court was informed that the defendant did not

want to be declared indigent and did not want to hire mitigation experts since he

wanted to put on a defense based entirely on his claim of innocence. During the

hearing, Mr. English made several statements to the trial court, in the presence of

the defendant, that the defendant was suffering from “severe mental and emotional

issues,” and yet the defendant did not seek to replace Mr. English as his defense

counsel at that time.

Subsequently, during a January 4, 2011 hearing (held on issues related to pro

se discovery motions filed independently by the defendant), it was revealed that

Mr. English did not support the defendant’s pro se discovery requests seeking to

develop certain evidence and witnesses related to his claims of innocence and the

existence of an alibi. At the conclusion of the hearing, the defendant acquiesced in

withdrawing his various pro se motions, and he made no objection to Mr. English’s

continued representation.

Then, at a January 24, 2011 hearing, provoked by the district attorney in

light of Louisiana Supreme Court Rule XXXI (“In any capital case in which a

defendant is found to be indigent, the court shall appoint no less than two attorneys

to represent the defendant . . . .”) to “get Mr. English and/or Mr. McCoy’s

position” on the rule since Mr. English was not certified as a capital defense

qualified counsel and there was no second defense counsel enrolled on the

defendant’s behalf, the trial judge questioned the defendant about the issue, and the

defendant informed the court that, even though Mr. English was not capital

certified, he waived any Rule XXXI entitlement to representation by two attorneys

because he did not want to have the public defender’s office reappointed to his

27

case. Mr. English also divulged to the court, during that hearing, the difficulties he

was having representing the defendant because of his “severe mental issues,”

stating, “Mr. McCoy is going to attempt to take over this trial and argue in front of

the jury.” Mr. English further stated, “It’s going to be a zoo, Judge, because I’m

not going to do what he wants me to do . . . I do not believe this man is rational . . .

I have an ethical duty to this man not to follow his bizarre behavior.” In response,

the defendant advised the trial court that Mr. English “won’t subpoena people that

will validate my innocence,” expounding at length on that assertion. The

defendant further revealed to the trial court his awareness of Mr. English’s planned

trial strategy when he stated: “Mr. English has told me there is no way he can win

this case.” Notwithstanding, the defendant did not seek to have Mr. English

substituted with other defense counsel.

Further, as noted hereinabove, following an order by the appellate court in

State v. McCoy, 46,394 (La. App. 2 Cir. 2/3/11) (unpublished), the trial court held

a February 3, 2011 hearing, to revisit the defendant’s refusal to allow appointment

of a second defense attorney from the public defender’s office to satisfy this

court’s Rule XXXI of “no less than two attorneys” to represent an indigent

defendant, the defendant chose to continue to be represented only by Mr. English,

stating, “I choose not to be strong armed to take a public defender’s aspect of

secondary counsel when that’s totally against my wishes.” It was at this hearing

that the trial date of July 28, 2011 was set.

Even though the defendant claims he had no knowledge that Mr. English

was going to concede his guilt until July 12, 2011, argument presented by newly-

enrolled appellate counsel alluded, during a January 23, 2012 post-trial hearing on

a motion for new trial, that the issue had been under discussion for at least a few

months before trial, in stating:

Mr. English formed the view relatively early on that the evidence

28

against Mr. McCoy was overwhelming and that the . . . only

successful outcome in the case, in Mr. English’s view, was to try to

persuade the jury to return a life sentence rather than the death

sentence and that the best way to do that strategically was to concede

Mr. McCoy’s guilt of the killings, being the killer of the three victims

in this case . . . . A couple of months before the trial, Mr. English

approached Mr. McCoy to put in fairly bold terms that he believed

that Mr. McCoy needed to take a plea of guilty to a life sentence if he

could get one rather than to proceed to trial.

The record clearly reveals the defendant’s awareness of Mr. English’s trial

strategy, to avoid the death penalty by conceding guilt and seeking a life sentence,

some eight months prior to July 12, 2011. 22 Thus, the trial judge did not abuse his

discretion by denying the motion to discharge and replace retained counsel two

days before trial. This assignment of error is without merit.

Right to Self-Representation

In his second assignment of error, the defendant contends he was denied his

right to self-representation, when, after the trial court denied his motion to

substitute another trial counsel for Mr. English during a July 26, 2011 hearing on

the matter held two days before trial, the defendant attempted to invoke his right of

self-representation.

When an accused manages his own defense, he relinquishes, as a purely

factual matter, many of the traditional benefits associated with the right to counsel;

for this reason, in order to represent himself, the accused must “knowingly and

intelligently” forgo those relinquished benefits. Faretta v. California, 422 U.S. at

835, 95 S.Ct. at 2541. Although a defendant need not himself have the skill and

experience of a lawyer in order competently and intelligently to choose self-

representation, he should be made aware of the dangers and disadvantages of self-

22

In a recorded jailhouse telephone conversation between the defendant and his father, on

August 4, 2011 (the day the jury returned its unanimous verdicts in the guilt phase of the

defendant’s capital trial), which was filed into the record in connection with the defendant’s

“Supplemental Motion for New Trial,” the defendant told his father, “I seen straight through

English, Daddy, when he first came and met me, Daddy. And that’s been over a year and a half

ago.”

29

representation, so that the record will establish that he knows what he is doing and

his choice is made “with eyes open.” Id. Thus, when a defendant asserts this right

of self-representation, a trial judge must make two independent decisions: (1)

whether defendant’s waiver of his right to be represented by counsel is intelligently

and voluntarily made, and (2) whether his assertion of his right to represent himself

is clear and unequivocal. State v. Hegwood, 345 So.2d 1179, 1181-82 (La. 1977).

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.” State v. Santos, 99-1897, p.

3 (La. 9/15/00), 770 So.2d 319, 321 (per curiam). 23

Whether the defendant has knowingly, intelligently, and unequivocally

asserted the right to self-representation must be determined based on the facts and

circumstances of each case. State v. Bridgewater, 00-1529 at p.18, 823 So.2d at

894 (“[C]ourts should ‘indulge in every reasonable presumption against waiver.’”)

(quoting 3 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal

Procedure § 11.3(a) (2nd ed. 1999)).

Furthermore, the right to self-representation is not absolute. Martinez v.

Court of Appeal of California, 528 U.S. 152, 161, 120 S.Ct. 684, 691, 145

L.Ed.2d 597 (2000). Most courts require the defendant to elect to represent

himself in a timely manner. Id., 528 U.S. 152, 161-62, 120 S.Ct. 684, 691. A

defendant who waits until trial to ask the court to excuse his appointed attorney in

order to search for retained counsel, after having acquiesced in representation by

an attorney throughout pretrial procedures, has waited so long that a trial judge’s

23

We note the Supreme Court’s pronouncement in Indiana v. Edwards, 554 U.S. 164, 177-78,

128 S.Ct. 2379, 2387-88, 171 L.Ed.2d 345 (2008): “[T]he Constitution permits judges to take

realistic account of the particular defendant’s mental capacities by asking whether a defendant

who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the

Constitution permits States to insist upon representation by counsel for those competent enough

to stand trial under Dusky [v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824] but

who still suffer from severe mental illness to the point where they are not competent to conduct

trial proceedings by themselves.”

30

action in denying such a delaying tactic is justified. State v. Hegwood, 345 So.2d

at 1182; State v. Austin, 258 La. 273, 278-79, 246 So.2d 12, 13-14 (1971).

In the case at bar, on July 26, 2011, the defendant sought to discharge and

replace Mr. English as defense counsel, but the motion was denied by the trial

court. Immediately after the trial court informed the parties that Mr. English would

be continuing as counsel and that the trial would commence in two days, the

defendant stated:

MR. MCCOY: Through Ache [sic] versus Oklahoma,[24] Your

Honor, I have the right to speak, I have a right to represent myself

through Ache [sic] versus Oklahoma, Your Honor, and too -

THE COURT: Not at this time, Mr. McCoy, the State versus

Bridgewater [case] states that you have unequivocally given up that

right because . . . you have not made that known to the Court

unequivocally before this date. So I will instruct you to speak through

Mr. English at this time and . . . Mr. English is your attorney and he

will be representing you . . . .

Given the circumstances and prior procedural history of this case, the

defendant’s one-sentence statement was not perceived by the trial court as a “clear

and unequivocal” assertion of his right to self-represent. Coming as it did

moments after the trial court’s ruling that the defendant could not discharge and

replace Mr. English as his defense counsel, since the defendant’s request to do so

came just two days before trial, it was not urged “in a timely manner.” The trial

judge refused to entertain the defendant’s late mention of self-representation,

stating, “Not at this time.”

Notably, the trial judge had previously allowed the defendant to represent

himself, in February of 2010, and the defendant did so for one month before Mr.

English enrolled as counsel. In contrast with the one-line assertion the defendant

invoked on July 26, 2011, after which his request was denied, he made an

unequivocal invocation of his right to represent himself on February 11, 2010,

24

Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

31

when he sought to substitute his self-representation for the representation of the

public defender’s office, stating:

MR. MCCOY: Your Honor, I would like to present to the Court

today under Ferret versus Carroll -- California.[25] I’ve also

presented to the Public Defender’s Office a valid -- requested

document for respective counsel to assist me through the proceeding

that I’m going through and not to collate themselves within my

attorney aspects. But I ask them to assist me through it because I am a

competent defendant, and I am literate, and I’m up under Ferret

versus California. You know, I am eligible for -- to represent myself

and not being able to represent myself when I’m eligible is a violation

of my Sixth and Fourteenth Amendment right. I’ve given the Public

Defender’s Office a year and a half of opportunities to represent me

and they did not represent me. And being competent, and being an

understanding defendant, I have the right up under the United States

Constitution to represent myself and not to be forced to have

representation on me . . . .

After this February 11, 2010 assertion of his right to self-representation, the

trial judge advised the defendant of his Miranda rights and questioned him under

Faretta as to his capacity to represent himself in a capital murder trial. During

that colloquy, the defendant told the judge that he understood he was facing a

possible death penalty, that he graduated from Rice University with a degree in

Business Administration, 26 that he understood he was entitled to a trial by jury

during which the State would have to prove its case beyond a reasonable doubt,

and that he was entitled to an attorney. At that point, the defendant volunteered

that “I’m going to have [an attorney] next month . . . I have paid counsel.” The

trial judge completed his Faretta questioning and after satisfying himself that the

defendant was exercising a knowing and voluntary choice with “eyes open,” 27 the

trial judge continued:

25

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

26

We note that in penalty phase mitigation testimony, Dr. Mark Vigen told the jury that the

defendant lied about going to Rice University and about earning a degree in Theology from

another institution.

27

Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541 (“A defendant . . . should be made

aware of the dangers and disadvantages of self-representation, so that the record will establish

that ‘he knows what he is doing and his choice is made with eyes open.’”) (quoting Adams v.

U.S. ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)).

32

THE COURT: All right, first of all you’re asking to represent

yourself. I believe that you have the education if that is what you

want to do but I am strongly and I mean very strongly encouraging

you not to represent yourself in this matter, sir . . . because of the

complexities of the law in this matter and the evidence regarding this

matter . . . . And you understand that you’ll be held to the same rules

[or] standards as an attorney if you represent yourself?

MR. MCCOY: Yes, sir, I do. And I know this is a complex

situation, Your Honor, but this is my life and . . . I know the steps that

I’m taking. I know the, you know, the advantages and disadvantages

but I choose to proceed forward because this is for my best interest.

On February 11, 2010, based on the defendant’s assurances that no one was

forcing him to waive counsel, that he understood the penalties he was facing, and

that he would be held to the same courtroom decorum and standards as an attorney,

the trial judge ruled that the defendant could proceed pro se, noting specifically

that in the event that his anticipated retained counsel did not sign on as expected,

the defendant would proceed to trial representing himself on the then-scheduled

trial date of May 24, 2010. The trial judge also appointed Randall Fish of the

public defender’s office to assist the defendant in any matters of law at that time.

A comparison of the colloquies that took place on February 11, 2010 and

July 26, 2011 demonstrates that the July 2011 one-sentence assertion was not the

definitive expression of the right to waive counsel and exercise the right to self-

representation that the defendant had asserted before the trial court on February 10,

2010, and the trial judge was no doubt able to compare those two events when he

dismissed the July 2011 one-sentence assertion.28 After the trial court declined the

28

Appellate counsel urged the same issue of self-representation at the hearing on the motion for

new trial held on January 23, 2012, the denial of which counsel now asserts was error. Appellate

counsel argued that in requesting to represent himself two days before trial, the defendant

“wasn’t playing games.” In denying the motion for new trial, the trial judge recalled that

defendant’s July 26, 2011 assertion of his right to represent himself was a “very brief request”

contrasted with his earlier (February 11, 2010) assertion to self-represent which had been granted

“after a long dissertation or a long discussion with Mr. McCoy.” The trial judge looked to

defendant’s entire history of representation in this case, which showed vacillation between

appointed counsel, self-representation, and retained counsel: “There was just too much that was

not clear and unequivocal about that and the Court declined to allow him to represent himself.”

Here, the trial judge had the benefit of his own memory of defendant’s repeated endorsement of

Mr. English, even after the Second Circuit pointedly questioned whether his waiver of

representation by two capital qualified attorneys was knowingly and intelligently made.

33

defendant’s July 26, 2011 assertion (“I have a right to represent myself through

Ache [sic] versus Oklahoma”), two days before trial, the defendant presented no

further assertion of a right to self-representation in lieu of retained counsel, nor did

he enter a contemporaneous objection. The trial court, based on the facts and

circumstances surrounding the defendant’s July 26, 2011 statement, determined

that any motion of self-representation was untimely and, as stated in Bridgewater,

the “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.” State v.

Bridgewater, 00-1529 at p. 19, 823 So.2d at 895. We find no abuse of discretion

in any denial by the trial court of self-representation on July 26, 2011.

Right to Hearing on Motion to Withdraw

In the defendant’s third assignment of error, he contends that the trial court

is required to appoint substitute counsel when the defendant makes a showing that

appointed counsel is incompetent or unable for some cause to furnish adequate

representation and that he made a clear showing that Mr. English was unable to

furnish adequate representation, such that the trial court erred in failing to hold a

hearing on the issue. The defendant argues that the trial judge had notice that the

defendant’s right to effective assistance of counsel was being jeopardized by the

strategic differences in how to defend this case, which lead to irreconcilable

differences between attorney and client.

The defendant cites State v. Draughn, 05-1825 (La. 1/17/05), 950 So.2d

583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007), in which

the capital defendant specifically did not raise a claim of ineffective assistance of

counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), but rather, challenged the trial court’s failure to hold

34

a hearing or otherwise address the defendant’s pretrial allegations about counsel,

stating, “In brief, the defendant states: ‘Mr. Draughn is not here asserting a claim

of ineffective assistance of counsel, but, rather, is challenging the trial court’s

failure to hold a hearing or otherwise address his pre-trial allegations.’” State v.

Draughn, 05-1825 at pp. 18-19, 950 So.2d at 599. Likewise, the instant

defendant’s brief to this court states that the “[d]efendant is not now advancing a

claim under Strickland.” (Emphasis original.) The defendant further states,

“[T]he summary denial of the defendant’s requests and complaints without

adequate investigation into Mr. McCoy’s entirely legitimate grievances requires

reversal.”

On the similar claims urged in State v. Draughn, this court cited LSA-

C.Cr.P. art. 921 (“A judgment or ruling shall not be reversed by an appellate court

because of any error, defect, irregularity, or variance which does not affect

substantial rights of the accused.”), and held:

Assuming, without deciding, that the trial court’s failure to hold

a hearing on the defendant’s pre trial motions may have been error,

this fact, without more, fails to present the court with anything from

which to discern prejudice to the defendant without a corresponding

claim that counsel rendered ineffective assistance at trial. At the

most, the trial court’s failure to hold a pre trial hearing on the motions

would constitute harmless error.

State v. Draughn, 05-1825 at p. 19, 950 So.2d at 599.

In this case, the defendant claims he made a “clear showing” that he and Mr.

English had a “catastrophic conflict” in their attorney-client relationship, which at

a bare minimum, required the trial judge to conduct an ex parte hearing, as was

done in State v. Bridgewater, supra, and State v. Campbell, 06-0286 (La.

5/21/08), 983 So.2d 810.29 Indeed, on July 26, 2011, Mr. English asked the trial

29

Importantly, as discussed in the defendant’s second assignment herein, on July 26, 2011, the

defendant did not make a clear and unequivocal assertion of his right to waive counsel and

represent himself, as he had done previously on February 11, 2010. Consequently, the trial judge

did not err by not holding an ex parte hearing to interrogate defendant under Faretta. In this

respect, this case is distinguishable from Bridgewater and Campbell, wherein the trial court

35

court for an ex parte hearing to air the divergent defense theories between counsel

and client, which the trial court declined, telling Mr. English, “[Y]ou are the

attorney, sir . . . [a]nd you have to make the trial decision of what you’re going to

proceed with . . . .”

In State v. Bridgewater, the trial court held a pretrial, ex parte hearing

(following which the transcript was sealed), in which appointed defense counsel

clarified that the conflict arose out of the defendant’s wish to present a defense of

total innocence and counsel’s recommendation that the defendant admit to second

degree murder and argue that the requisite specific intent, needed to prove first

degree murder, was lacking. State v. Bridgewater, 00-1529 at pp. 20-21, 823

So.2d at 896. In Bridgewater, the trial court found that the defendant had voiced

the same strategic conflict with his previous counsel and that he had “gone

through” two other defense attorneys, suggesting a “pattern.” Id. Given that the

Bridgewater defendant’s capital trial was scheduled to begin in four days, this

court found no abuse of discretion in the trial court’s denial of defense counsel’s

motion to withdraw. Id.

A fair reading of the instant record leaves this court with the inescapable

conclusion that the trial judge was intimately familiar with the strategic difficulties

playing out between the defendant and Mr. English, which had previously caused

the defendant to discharge the public defender’s office and to briefly represent

himself. Thus, an ex parte hearing for the sole purpose of reviewing the case

history that was already known to the trial court was unnecessarily cumulative,

particularly when the issues repeatedly came to light at various pretrial hearings,

including on January 4, 2011, January 24, 2011, July 12, 2011, and July 26, 2011.

The defendant’s stated complaints about Mr. English all centered on strategic

differences, as subsequently articulated by appellate counsel at the hearing on the

held an ex parte hearing.

36

motion for new trial: “Mr. McCoy’s objective was to be acquitted . . . and to be

allowed to go home. Mr. English’s clear objective was in the guilt phase to have

him found guilty of second degree murder . . . but given a life sentence and that if

it went into the penalty phase to have the jury return a life sentence rather than a

death sentence.” The same scenario occurred in Bridgewater and Campbell,

wherein capital defendants disagreed with their appointed counsels’ appreciation of

the overwhelming evidence against them and disagreed with counsels’ decision to

embark on the same defense strategy as Mr. English did in this case, leading to

requests to forego representation by their respective counsel.

In this case, neither the defendant nor appellate counsel argue that Mr.

English was otherwise incompetent as a defense attorney, although there was

considerable discussion about his lack of capital certification. Mr. English held

himself out as “a seasoned criminal trial lawyer,” who had “practic[ed] law for

close to twenty years.”

This court has stated that the district court cannot be required to appoint

different counsel “merely to please the desires of the indigent accused, in the

absence of a showing that the court appointed attorney is inept or incompetent to

represent the accused.” State v. White, 256 La. 36, 42, 235 So.2d 84, 86 (1970).

Nothing presented by the defendant in this assignment of error suggests that

the trial judge in this case abused his discretion by not holding an ex parte hearing,

in addition to the July 26, 2011 hearing, on the question of Mr. English’s

competence to provide an adequate representation. Notwithstanding, any trial

court error in this respect appears harmless under State v. Draughn, supra, and

Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182

(1993) (“The inquiry . . . is not whether, in a trial that occurred without the error, a

guilty verdict would surely have been rendered, but whether the guilty verdict

actually rendered in this trial was surely unattributable to the error.”). For these

37

reasons, this assignment of error is without merit.

Concession of Guilt at Trial

In his fourth assignment of error, the defendant contends that the trial court

erred in ruling that the defendant’s retained counsel could decide whether to

concede guilt of the charged murders at trial, without the defendant’s consent. The

defendant asserts that the relationship between an attorney and his client “is one of

principal and agent wherein the lawyer’s authority derives from and is limited by

the authority of the client” (emphasis omitted), such that the defendant should have

been able to decide what manner of defense would be presented at trial, instead of

having to accept Mr. English’s decision to concede his guilt, at the outset, in the

opening statement.

In support of his position on this issue, the defendant cites State v. Felde,

422 So.2d 370, 393 (La. 1982), cert. denied, 461 U.S. 918, 103 S.Ct. 1903, 77

L.Ed.2d 290 (1983), in which the capital defendant asserted that he was “denied

effective assistance of counsel at trial due to adherence by defense counsel to an

employment condition set by the defendant that defense counsel not attempt to

obtain any jury verdicts other than ‘Not Guilty by Reason of Insanity’ or ‘Guilty of

First Degree Murder’ with Capital Punishment.” After the Felde defendant was

sentenced to death, he appealed raising a claim of ineffective assistance for

counsel’s adherence to pursue the “all or nothing” strategy he had imposed. This

court refused to find the Felde defendant’s counsel ineffective, observing that

“[u]nder our adversary system, once a defendant has the assistance of counsel the

vast array of trial decisions, strategic and tactical, which must be made before and

during trial rests with the accused and his attorney . . . . The fact that a particular

strategy is unsuccessful does not establish ineffective assistance.” State v. Felde,

422 So.2d at 393. The Felde court went on to rule that “a defendant can limit his

defense consistent with his wishes at the penalty phase of trial.” Id., 422 So.2d at

38

395 (emphasis added).

This court has subsequently applied the Felde case to permit a capital

defendant to instruct his appointed counsel not to present any mitigating evidence

in the penalty phase. State v. Bordelon, 07-0525, pp. 35-36 (La. 10/16/09), 33

So.3d 842, 864-65. Cf. Schriro v. Landrigan, 550 U.S. 465, 479-81, 127 S.Ct.

1933, 1942-44, 167 L.Ed.2d 836 (2007) (“[I]t was not objectively unreasonable for

th[e] [Arizona] court to conclude that a defendant who refused to allow the

presentation of any mitigating evidence could not establish Strickland prejudice

based on his counsel’s failure to investigate further possible mitigating evidence . .

. .”). Importantly, State v. Felde did not endorse the suggestion espoused in the

instant case by the defendant, i.e., that trial counsel must adopt a capital client’s

unsupportable trial strategy at the guilt phase, particularly when the assertion of

such a defense would involve perjured testimony.

Nevertheless, the defendant urged in brief to this court that Mr. English

should have advanced his “unflinchingly maintained claim of innocence,” while

Mr. English repeatedly advised the trial court that to do so would run afoul of his

ethical obligations. See Louisiana Rules of Professional Conduct, Rule 1.2(d) (“A

lawyer shall not counsel a client to engage, or assist a client, in conduct that the

lawyer knows is criminal or fraudulent . . . .”). Given the overarching burden of

Mr. English’s requirement as an attorney to adhere to Rule 1.2(d), the defendant’s

repeated assertion that “the principal has the right throughout the duration of the

relationship to control the agent’s acts” is unpersuasive.

The Supreme Court discussed such an ethical dilemma in United States v.

Cronic, 466 U.S. 648, 656 n.19, 104 S.Ct. 2039, 2045 n.19, 80 L.Ed.2d 657

(1984):

Of course, the Sixth Amendment does not require that counsel do

what is impossible or unethical. If there is no bona fide defense to the

charge, counsel cannot create one and may disserve the interests of his

39

client by attempting a useless charade. At the same time, even when

no theory of defense is available, if the decision to stand trial has been

made, counsel must hold the prosecution to its heavy burden of proof

beyond reasonable doubt. And, of course, even when there is a bona

fide defense, counsel may still advise his client to plead guilty if that

advice falls within the range of reasonable competence under the

circumstances. [Citations omitted.]

Applying these ethical considerations to the present case, the agency

relationship between an attorney and client anticipates that the attorney will

comply with the client’s lawful instructions. In this case, presenting an alibi

defense at the guilt phase put Mr. English in an ethical conundrum, as committing

perjury is a crime pursuant to LSA-R.S. 14:123. In Nix v. Whiteside, 475 U.S.

157, 173-76, 106 S.Ct. 988, 997-99, 89 L.Ed.2d 123 (1986), the Supreme Court

determined that the Sixth Amendment right to assistance of counsel is not violated

when an attorney refuses to cooperate with a defendant in presenting perjured

testimony at trial.

In the instant case, the State’s evidence against the defendant was

overwhelming. In a post-trial affidavit, Mr. English explained his trial strategy:

Robert McCoy believed that law enforcement and others were

conspiring against him and he was simply unable to accept the

evidence against him . . . . I became convinced that the evidence

against Robert McCoy was overwhelming . . . . I know that Robert

was completely opposed to me telling the jury that he was guilty of

killing the three victims and telling the jury that he was crazy but I

believed that this was the only way to save his life. I needed to

maintain my credibility with the jury in the penalty phase and could

not do that if I argued in the guilt phase that he was not in Louisiana at

the time of the killings, as he insisted. I consulted with other counsel

and was aware of the Haynes case and so I believed that I was entitled

to concede Robert’s guilt of second degree murder even though he

had expressly told me not to do so. I felt that as long as I was his

attorney of record it was my ethical duty to do what I thought was best

to save his life even though what he wanted me to do was to get him

acquitted in the guilt phase. I believed the evidence to be

overwhelming and that it was my job to act in what I believed to be

my client’s best interests . . . . I firmly believe that Robert McCoy is

insane and was not competent to be tried . . . . [H]e could not assist

counsel or participate effectively in the proceedings due to his mental

illness. He could not rationally understand the proceedings because

he saw the evidence, the procedures and the rulings through the lens

of his delusion that law enforcement, the prosecutor, the judge and

40

ultimately myself were conspiring against him. Robert could not

consult with me with any reasonable degree of rational understanding

both because his paranoia and delusions destroyed our professional

relationship and also because all information was distorted or

obscured by his delusions . . . . Robert was unable to deal rationally

with the evidence of his guilt and the case against him. Robert could

not recall and relate facts pertaining to his actions and whereabouts at

the time of the crime because he truly believed that he was elsewhere

at the time of the crime. He could not assist in locating and

examining relevant witnesses because his witnesses were a part of his

delusions in some cases or their relevance was dictated by his

paranoia and his belief in a large scale conspiracy against him. Robert

could not review discovery or listen to evidence and assist in

assessing any distortions or misstatements because he could not

grapple with the evidence in the real world. He could not make

rational decisions despite my efforts to clearly explain his alternatives

and could not testify except to give vent to his delusions and paranoia

....

Mr. English acknowledged his ethical dilemma to the trial judge numerous

times during the course of the trial court proceedings. During a January 4, 2011

hearing, Mr. English stated that the defendant was “recommending . . . a course of

action that [he (Mr. English) did] not believe [was] in [the defendant’s] best

interest,” and Mr. English “believe[d] as a lawyer that [he had] an ethical duty

given the ramifications of this case to not follow that advice.” Mr. England further

advised the trial court, during a January 24, 2011 hearing, that he believed he

“ha[d] an ethical duty to this man not to follow his bizarre behavior.” Mr. England

repeatedly reiterated to the trial court, as he did during a July 12, 2011 hearing, that

he “ha[d] an ethical duty . . . to try to defend [the defendant] and do the . . . best [he

(Mr. English) could] to save [the defendant’s] life.” The alibi defense the

defendant wanted Mr. England to put on, but which could not be substantiated, had

no reasonable chance of success, but exposed those who attempted such a defense

to the charge of perjury.

The ongoing discussion of this trial strategy issue culminated at the pretrial

hearing held on July 26, 2011, when it was raised by trial counsel as follows:

MR. ENGLISH: Your Honor, at this time I’m going to ask for an ex

parte hearing with the Court to discuss my representation with Mr.

41

McCoy . . . . Mr. McCoy is insistent that I put forward a defense in

this case at the guilt phase of this trial. I have made a determination,

Your Honor, that the evidence in this case is so overwhelming against

Mr. McCoy that in order to do that . . . .

* * *

THE COURT: . . . I think that you’ve stated this on the record

prior to this date . . . . I believe that - you are the attorney, sir . . . .

And you have to make the trial decision of what you’re going to

proceed with . . . .

Clearly, the trial judge had Professional Conduct Rule 1.2(d) in mind when he

reminded Mr. English that he was the attorney, i.e., the person who had the ethical

obligation to advance a lawful defense.30

Conceding guilt, in the hope of saving a defendant’s life at the penalty

phase, is a reasonable course of action in a case in which evidence of guilt is

overwhelming. Louisiana courts have consistently upheld the defense strategy of

acknowledging guilt, against a charge of ineffective assistance of counsel, under

the standard enunciated in Strickland. See e.g. State v. Tucker, 13-1631, pp. 36-

41 (La. 9/1/15), 181 So.3d 590, 618-21, cert. denied, ___ U.S. ___, 136 S.Ct. 1801,

___ L.Ed.2d ___ (2016) (wherein the capital defendant did not acquiesce in

counsel’s decision to admit guilt of second degree murder and feticide in the guilt

phase closing argument and, on direct appeal, this court found that the defendant

failed to demonstrate a per se violation of the Sixth Amendment resulting from a

conflict of interest, noting that “counsel’s obligation to provide effective assistance

‘is limited to legitimate, lawful conduct compatible with the very nature of a trial

as a search for truth’ and did not extend to ‘in any way assisting the client in

presenting false evidence or otherwise violating the law’”; no claim of ineffective

30

See also Louisiana Rules of Professional Conduct, Rule 3.3(b) (“A lawyer who represents a

client in an adjudicative proceeding and who knows that a person intends to engage, is engaging

or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable

remedial measures, including, if necessary, disclosure to the tribunal.”). In furtherance of his

ethical obligations, before the defendant testified in the guilt phase of the trial, Mr. English stated

on the record that he had advised the defendant not to testify and had warned him about perjury

and its criminal consequences.

42

assistance, under Strickland, was presented on appeal); State v. Holmes, 06-2988,

p. 1 n.2 (La. 12/2/08), 5 So.3d 42, 48, cert denied, 558 U.S. 932, 130 S.Ct. 70, 175

L.Ed.2d 233 (2009) (unpublished appendix) (noting defense counsel conceded the

defendant was guilty of second degree murder, but that the jury found the State

proved guilt of first degree murder, this court concluded that, given the defendant’s

numerous inculpatory statements and possession of the victim’s property,

counsel’s decision to concede her guilt to second degree murder fell well within

the ambit of sound trial strategy); State v. Legrand, 02-1462, p. 27 (La. 12/3/03),

864 So.2d 89, 107 (unpublished appendix) (“[R]egarding counsel’s

acknowledgment of guilt during defense closing argument, an acknowledgment of

guilt may form part of defense strategy” and did not constitute ineffective

assistance.); State v. Taylor, 01-1638, p. 4 (La. 1/14/03), 838 So.2d 729, 737

(“The defense conceded defendant’s guilt, but argued the crime more properly fit

second degree murder.”); State v. Frost, 97-1771 (La. 12/1/98), 727 So.2d 417,

439, cert denied, 528 U.S. 831, 120 S.Ct. 87, 145 L.Ed.2d 74 (1999) (unpublished

appendix) (“Trial counsel employed a clear strategy throughout voir dire, the guilt

phase, and the penalty phase of defendant’s trial of acknowledging defendant’s

guilt and the brutal nature of the crime while pleading for the jury to spare

defendant’s life . . . [C]ounsel’s admission that the crime was ‘cruel, heinous, and

atrocious,’ formed part of a carefully constructed strategy to save defendant’s life .

. . [T]he defendant has not demonstrated counsel’s decision rendered his trial

globally unfair or the verdict generally suspect . . . [and it] did little to prejudice

defendant’s case.”); State v. Burkhalter, 428 So.2d 449, 457 (La. 1983) (wherein

the defendant was found guilty of second degree murder, though charged with first

degree murder, and this court found no ineffective assistance of defense counsel,

who had argued that at most the defendant was guilty of second degree murder;

this court stated, “Defendant’s lawyer succeeded in saving defendant from

43

execution, no doubt . . . because of tactical decisions in trying the case like the

arguments to which defendant now takes exception.”); State v. Berry, 430 So.2d

1005, 1014-15 (La. 1983) (wherein defense attorney’s admission of the

defendant’s intent to commit robbery was not held ineffective assistance of

counsel, finding that counsel “may have been trying to establish his candor with

the jury” and that “[n]arrowing the presumption of innocence claim to the charge

of first degree murder was intended to direct the jury toward a lesser verdict”).

This court does not sit to second guess strategic and tactical choices made by

trial counsel. State v. Hoffman, 98-3118, p. 40 (La. 4/11/00), 768 So.2d 542, 579,

supplemented, 00-1609 (La. 6/14/00), 768 So.2d 592 (per curiam), cert. denied,

531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Myles, 389 So.2d

12, 31 (La. 1979). We find no merit in this assignment of error.

Counsel’s Failure to Follow Express Directions of the Defendant

In the interrelated fifth and sixth assignments of error, the defendant claims

that he was denied the assistance of counsel within the meaning of the Sixth

Amendment to the United States Constitution and Article I, § 13 of the Louisiana

Constitution when his lawyer conceded his guilt against his expressly-stated

wishes, setting up an irreconcilable conflict of interest between attorney and client

and resulting in defense counsel’s failure to adversarially test the State’s case.31

31

In the guilt phase opening statement by Mr. English, he stated to the jury, in pertinent part:

[A]s a defense lawyer, we are trained to make the State prove every piece of

evidence that it wishes to interject into a trial. In this case I cannot stand in front

of you because of what the stakes are in this case and lie to you or tell you any

differently that the District Attorney can prove every fact that he has just alleged

to you. There is no way reasonably possible that you can listen to the evidence in

this case and not come to any other conclusion than Robert McCoy was the cause

of these individuals’ death[s]. But that’s not the only issue to be decided. First

degree murder requires that there be specific intent -- specific intent to kill those

individuals. The State cannot put on any evidence that Robert McCoy ever made

any malice statement towards those individuals; that those individuals was [sic]

ever on his radar to do harm. Robert McCoy is crazy . . . . He meets the legal

definition of competent, but evidence will be put on in this case that Robert

McCoy suffers from emotional and mental issues that affects [sic] his ability to

make decisions in this case . . . . We believe that the evidence will show that

because of Mr. McCoy’s emotional and mental conditions that this is a second

44

By conceding the defendant’s guilt in his opening statement and again in his

closing argument of the guilt phase - conceding before the jury that the defendant

caused the deaths of the three victims but because of his mental deficiencies he

lacked the specific intent to murder - the defendant argues that Mr. English failed

to subject the prosecution’s case to meaningful adversarial testing, and under

United States v. Cronic, supra, prejudice must be presumed. The defendant urges

that this trial strategy deprived him of the presumption of innocence along with the

right to knowingly and intelligently exercise his privilege against compulsory self-

incrimination, his right to trial by jury, his right to present a defense, and his right

to confront his accusers. Even though the fifth and sixth assignments of error are

worded in terms of “denial of right to counsel,” the argument is essentially one of

ineffective assistance of counsel, which this court has consistently reviewed under

the Strickland standard.32

In United States v. Cronic, decided the same day as Strickland v.

Washington, the Supreme Court created a limited exception to the application of

Strickland’s two-part test in situations that “are so likely to prejudice the accused

that the cost of litigating their effect in the particular case is unjustified.” Cronic,

466 U.S. at 658, 104 S.Ct. at 2046. The Supreme Court identified three situations

implicating the right to counsel in which prejudice will be presumed. First are

situations in which a defendant is denied counsel at a critical stage of a criminal

proceeding, i.e., the complete denial of counsel. Second, and the most relevant

here, are situations in which a defendant’s trial counsel “entirely fails to subject the

degree murder trial.

32

Under the standard for ineffective assistance of counsel set out in Strickland v. Washington,

adopted by this court in State v. Washington, 491 So.2d 1337, 1339 (La. 1986), a reviewing

court must reverse a conviction if the defendant establishes: (1) that counsel’s performance fell

below an objective standard of reasonableness under prevailing professional norms; and (2) that

counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered

unfair and the verdict suspect. Nevertheless, the defendant in the instant case specifically avers

that he is not raising a claim of ineffective assistance of counsel under Strickland in this direct

appeal, reserving that claim for collateral review.

45

prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659,

104 S.Ct. at 2047. Finally, prejudice is presumed when the circumstances

surrounding a trial prevent a defendant’s attorney from rendering effective

assistance of counsel. Cronic, 466 U.S. at 659-60, 104 S.Ct. at 2047 (citing

Powell v. Alabama, 287 U.S. 45, 57-58, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). As to

the second situation envisioned by Cronic, prejudice is presumed when the

attorney “‘entirely fails to subject the prosecution’s case to meaningful adversarial

testing.’” Bell v. Cone, 535 U.S. 685, 696-97, 122 S.Ct. 1843, 1851, 152 L.Ed.2d

914 (2002) (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039). Bell v. Cone made

plain that the difference between Strickland, which deals with the failure of

counsel on specific points, and Cronic, which addresses the complete failure of

counsel to oppose the prosecution, is one “not of degree but of kind.” Id. 33 Courts

distinguish Strickland and Cronic, as the “distinction between ineffective

assistance of counsel and the constructive denial of counsel,” respectively.

Haynes v. Cain, 298 F.3d 375, 381 (5th Cir. 2002), cert. denied, 537 U.S. 1072,

123 S.Ct. 676, 154 L.Ed.2d 567 (2002).

In the present case, the defendant argues that Cronic controls his Sixth

Amendment claim and that prejudice should be presumed because, by conceding

his guilt in the opening statement of the guilt phase of trial, Mr. English “entirely

fail[ed] to subject the prosecution’s case to meaningful adversarial testing.”

(Emphasis omitted.) On the other hand, the State opines that in analyzing the

defendant’s counsel and representation claims, the Strickland standard should

apply. For the second situation of Cronic to apply, “the attorney’s failure must be

33

In Bell v. Cone, the Supreme Court held that the defendant’s claims that counsel had been

ineffective at his capital sentencing hearing for failing to adduce mitigating evidence and for

waiving closing argument. The Court found that such omissions “are plainly of the same ilk as

other specific attorney errors we have held subject to Strickland’s performance and prejudice

components.” Bell v. Cone, 535 U.S. at 697-98, 122 S.Ct. at 1851-52. Notably, in Cronic, the

Supreme Court remanded that case to be considered under the Strickland test. Cronic, 466 U.S.

at 666-67, 104 S.Ct. at 2050-51.

46

complete.” Bell v. Cone, 535 U.S. at 697, 122 S.Ct. at 1851. Here, by conceding

the defendant’s guilt, Mr. English did not completely abdicate the defendant’s

defense, rather Mr. English advanced what he saw was the only viable course of

action. At the hearing on the motion for new trial, Mr. English testified about his

trial strategy of conceding the defendant’s guilt:

[MR. ENGLISH:] I reached that conclusion [as to trial strategy] a

long time before [the day of trial], that I was going to have to stand in

front of that jury and beg for Robert McCoy’s life. I had no option.

[POST-CONVICTION DEFENSE COUNSEL:] And that conceding

his guilt in your mind was the only way to go for it.

[MR. ENGLISH:] I’m a seasoned criminal trial lawyer, had been

doing this for a number of years, and I had never had a case where the

evidence was so overwhelming against a client.

In addition, Mr. English remained active at trial, probing weaknesses in the

prosecution’s case. As stated hereinafter in connection with our discussion of the

defendant’s tenth assignment of error, during jury selection, Mr. English ardently

fought to retain some racial diversity in the defendant’s trial by pressing a Batson

claim and arguing for challenges when warranted. During trial, Mr. English cross-

examined most of the State’s guilt phase witnesses, frequently asking questions

written by the defendant.34

Here, the defendant pled not guilty to the three-count indictment. Mr.

English’s strategy was to concede the defendant’s guilt, but in an effort to spare

34

Mr. English was able to get the police officer who had pursued the suspect, who fled from the

scene of the crime in a white car owned by the defendant, to admit that he could not positively

identify the assailant he was pursuing as the defendant. Mr. English cross-examined the police

dispatcher, who admitted that there was no way to identify the “Robert” named in the 911

recording as the defendant, without a last name having been given. Mr. English also elicited

testimony from the State’s firearms examiner that she had not been asked to look for DNA or

fingerprints on the weapon or the cartridges or bullets, and she did not know who had fired the

weapon. On cross-examination by Mr. English, the Walmart employee/witness admitted that he

could not say that the individual in the video purchasing ammunition was definitely the

defendant. Mr. English elicited testimony from the forensic pathologist that there was a

sufficient quantity of a marijuana metabolite in the body of victim Willie Young at the time of

autopsy to indicate that Mr. Young had smoked some marijuana thirty to sixty minutes prior to

his death. During Mr. English’s cross-examination of the defendant’s friend, Gayle Houston,

Mr. Houston admitted that when he gave the defendant a ride on the evening of the shooting, the

defendant was crying, thereby humanizing the defendant as capable of remorse in front of the

jury.

47

him capital punishment he argued that a verdict of second degree murder would be

more appropriate, asserting that the defendant’s mental incapacity prevented him

from forming the requisite specific intent to commit first degree murder. The

defendant faults this trial strategy, given that Louisiana does not recognize the

defense of diminished capacity. 35 The defendant urges that, by conceding the only

factual issue in dispute, Mr. English did not submit the State’s case to the crucible

of adversarial testing and, thus, denying him the second category of right to

counsel delineated in Cronic, and depriving him of a fundamentally fair trial,

requiring reversal without any showing of specific prejudice.

The U.S. Supreme Court addressed a similar argument in Florida v. Nixon,

543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Nixon was charged with

capital murder and faced overwhelming evidence of his guilt at trial, including his

own confession in graphic detail as to how he kidnapped and killed his victim.

Nixon, 543 U.S. at 180, 125 S. Ct. at 556. After investigating the State’s evidence

35

In State v. Dressner, 08-1366, pp. 25-26 (La. 7/6/10), 45 So.3d 127, 143-44, cert. denied, 562

U.S. 1271, 131 S.Ct. 1605, 179 L.Ed.2d 500 (2011), this court stated:

It is well-settled, “[w]hen a defendant is tried upon a plea of ‘not guilty’,

evidence of insanity or mental defect at the time of the offense shall not be

admissible.” La.Code Crim. Proc. art. 651; State v. Holmes, 06-2988, p. 46 (La.

12/2/08), 5 So.3d 42, 74, cert. denied, ––– U.S. ––––, 130 S.Ct. 70, 175 L.Ed.2d

233 (2009). Under La.Rev.Stat. § 14:14, Louisiana’s codification of the

M’Naughten Rule, an offender is exempt from criminal responsibility only if he

is incapable of distinguishing between right and wrong with reference to the

conduct in question. Thus, Louisiana does not recognize the doctrine of

diminished capacity absent a dual plea of not guilty and not guilty by reason of

insanity. State v. Deboue, 552 So.2d 355, 366 (La. 1989), cert. denied, 498 U.S.

881, 111 S.Ct. 215, 112 L.Ed.2d 174 (1990); State v. Nelson, 459 So.2d 510, 513

(La. 1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 322 (1985);

State v. Lecompte, 371 So.2d 239, 243 (La. 1978). Evidence of a mental defect,

which does not meet the M’Naughten definition of insanity, therefore, cannot

negate a specific intent to commit a crime and reduce the degree of the offense.

Holmes, 06-2988 at p. 46, 5 So.3d at 74. Consequently, in crimes requiring

specific intent, diminished mental capacity is not a recognized defense.

Lecompte, 371 So.2d at 243. [Footnote omitted.]

In the present case, the defendant did not enter a dual plea of not guilty and not guilty by reason

of insanity, and thus no evidence of insanity or mental defect at the time of the offense was

admissible at his trial. See LSA-C.Cr.P. art. 651 (“When a defendant is tried upon a plea of ‘not

guilty’, evidence of insanity or mental defect at the time of the offense shall not be admissible . .

. .”).

48

and witnesses, defense counsel developed a strategy to concede Nixon’s guilt and

ask the jury to spare his life. Id., 543 U.S. at 181, 125 S.Ct. at 557. Defense

counsel explained this strategy to Nixon on multiple occasions. Id. However,

Nixon never consented and, instead, remained unresponsive throughout these

discussions. Id. After state post-conviction proceedings, the Florida Supreme

Court, relying on Cronic, held that Nixon’s conviction should be reversed because

of defense counsel’s failure to obtain Nixon’s affirmative and explicit consent to

pursue a strategy of conceding guilt. Id., 543 U.S. at 186, 125 S.Ct. at 560. The

U.S. Supreme Court granted certiorari to resolve the question of whether defense

counsel’s failure to obtain Nixon’s express consent to concede his guilt should be

evaluated under Cronic or Strickland. Nixon, 543 U.S. at 186-87, 125 S.Ct. at

560. The Supreme Court reversed, holding that “counsel’s effectiveness should

not be evaluated under the Cronic standard, but under the standard described in

Strickland.” Id.36 Defense counsel, in conceding Nixon’s factual guilt, had not

waived the State’s obligation to prove beyond a reasonable doubt, through

competent and admissible evidence, that Nixon committed first degree murder.

Id., 543 U.S. at 188, 125 S.Ct. at 561. The Supreme Court stated that such a

concession strategy does not amount to the functional equivalent of entering a

guilty plea on the defendant’s behalf - the State must still prove its case subject to

cross-examination of its witnesses by defense counsel - and may constitute a

reasonable strategic choice in a case in which the circumstances of the crime are

horrendous and the evidence of the defendant’s guilt overwhelming. 37 Under those

36

See also Haynes v. Cain, 298 F.3d 375, 381 (5th Cir. 2002) (commenting that “those courts

that have confronted situations in which defense counsel concedes the defendant’s guilt for only

lesser-included offenses have consistently found these partial concessions to be tactical

decisions, and not a denial of the right to counsel. As such, they have analyzed them under the

two-part Strickland test.”) (footnote omitted).

37

Herein, the defendant cites Cooke v. State, 977 A.2d 803, 843-44 (Del. 2009), also a capital

case, in which the Delaware Supreme Court reversed the defendant’s conviction because defense

counsel not only argued for a verdict of “guilty but mentally ill” over his client’s objection

(albeit without formally changing his plea), but defense counsel also introduced a privileged and

49

circumstances, “‘avoiding execution [may be] the best and only realistic result

possible.’” Id., 543 U.S. at 191, 125 S.Ct. at 562-63 (quoting ABA Guidelines for

the Appointment and Performance of Defense Counsel in Death Penalty Cases, §

10.9.1, Commentary (Rev. ed. 2003) (reprinted in 31 Hofstra L.Rev. 913, 1040

(2003)).38

Given the circumstances of this crime and the overwhelming evidence

incriminating the defendant, admitting guilt in an attempt to avoid the imposition

of the death penalty appears to constitute reasonable trial strategy. The jury was

left with several choices after Mr. English conceded that the defendant shot the

three victims, including returning a responsive verdict of second degree murder or

manslaughter, as well as not returning the death penalty. Therefore, in light of

Nixon, the defendant has not shown that trial counsel’s actions were ineffective.

See State v. Felde, 422 So.2d at 393 (“The fact that a particular strategy is

unsuccessful does not establish ineffective assistance.”). Cf. Jones v. Stotts, 59

F.3d 143, 146 (10th Cir. 1995) (“A defendant may prevail on an ineffective

assistance claim relating to trial strategy . . . if he can show counsel’s strategy

decisions would not be considered sound.”).

The defendant states that he “is explicitly not raising a claim of ineffective

assistance under the Strickland standard at this time,” in which case the defendant

“would bear the burden of establishing prejudice,” reserving that claim for post-

conviction proceedings “if they should become necessary.”

otherwise inadmissible confession to the crime in order to advance the mental illness argument.

The confession, which the Cooke defendant disputed, essentially made the State’s case at the

guilt stage. Here, although the defendant claims that Cooke is “on all fours” with the present

case, the distinction is obvious, and this court is not bound by it.

38

Nixon acknowledged that although such a concession in a run-of-the-mill trial might present a

closer question, “the gravity of the potential sentence in a capital trial and the proceeding’s two-

phase structure vitally affect counsel’s strategic calculus . . . . Counsel therefore may reasonably

decide to focus on the trial’s penalty phase, at which time counsel’s mission is to persuade the

trier that his client’s life should be spared.” Nixon, 543 U.S. at 190-92, 125 S.Ct. at 562-63.

The Court reasoned, “In this light, counsel cannot be deemed ineffective for attempting to

impress the jury with his candor and his unwillingness to engage in a useless charade.” Id.

(internal quotation marks and citation omitted).

50

Accordingly, we conclude that the defendant has shown no per se violation

of the Sixth Amendment resulting from any conflict of interest. Therefore, we find

no merit in the defendant’s fifth and sixth assignments of error.

Deprivation of Other Constitutional Rights

In his seventh assignment of error, the defendant complains that Mr. English

was not acting as the defendant’s lawyer “in any true sense,” which deprived him

of his constitutional rights, including the right to compulsory process. Specifically,

the defendant claims that Mr. English refused to subpoena the defendant’s

witnesses, offered no opposition to quashal of the defendant’s pro se subpoenas,

and declared that he would not call any of the witnesses the defendant sought by

way of those subpoenas, contrary to the defendant’s wishes. The defendant also

complains that by conceding his guilt Mr. English nullified his plea of not guilty,

deprived him of his constitutional right to an impartial jury, and Mr. English’s

“limited” cross-examination undermined his right to confront and cross-examine

his accusers, all of which relieved the State of its burden under the Due Process

Clause. The defendant suggests that at his capital trial, he “had in effect two

prosecutors and no defense lawyer.”

The defendant’s pro se subpoena requests commanded a good bit of the trial

court’s pretrial attention in this case. As noted in our discussion of the defendant’s

fourth assignment of error, supra, presentation of the defendant’s alibi defense was

not ethically possible for Mr. English, and thus there was no legitimate reason that

Mr. English would have defended the pro se subpoena requests from quashal. See

State v. Kenner, 336 So.2d 824, 831 (La. 1976) (counsel is not required to

undertake futile steps). No constitutional violation has been demonstrated.

Likewise, as discussed in connection with the defendant’s fifth assignment

of error, supra, Mr. English actively cross-examined the State’s witnesses. Finally,

Mr. English’s concession of guilt did not render the defendant’s not guilty plea

51

meaningless, as the State was still obliged to present evidence establishing the

essential elements of the crimes charged. See Florida v. Nixon, 543 U.S. at 187-

88, 125 S.Ct. at 560-61 (counsel’s guilt phase concession of Nixon’s guilt did not

amount to “the functional equivalent of a guilty plea” and did not waive Nixon’s

constitutional rights, including the right to a trial by jury, the protection against

self-incrimination, and the right to confront one’s accusers).

The abundance of evidence that the defendant killed the three victims in this

case set the course for how the trial would unfold. All of the parties were

imminently aware of the high stakes of the capital trial. 39 At every turn, the trial

judge scrupulously sought to protect the defendant’s constitutional rights. Mr.

English’s strategic decision to concede factual guilt did not waive the defendant’s

constitutional rights, but rather was a strategic choice designed to obtain the lesser

verdict of second degree murder, instead of first degree murder. Nixon forecloses

the claims raised in this assignment of error.

Failure to Appoint Certified Capitol Defense Co-Counsel

In the defendant’s eighth assignment of error, he claims that he was denied

the assistance of co-counsel to which he was entitled and that his waivers of

appointment of co-counsel were not knowingly and intelligently made. The issue

arose during pretrial at hearings held on January 24, 2011 and February 3, 2011.

At the conclusion of both hearings, the trial judge indicated that the “only way” he

could appoint additional counsel would be to have the public defender’s office

assist Mr. English as co-counsel, a choice that the defendant repeatedly declined as

an option. Consequently, the hearings ended with the trial judge’s conclusion that

the defendant had made a “knowing, voluntary, and intelligent” waiver of co-

counsel, and he denied the State’s motion for appointment of additional counsel.

39

See California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171

(1983) (recognizing that “the qualitative difference of death from all other punishments requires

a correspondingly greater degree of scrutiny of the capital sentencing determination”).

52

The defendant now argues that at both the January 24, 2011 and the February 3,

2011 hearings, the trial court erred by failing to fully advise him of the benefits of

two capital qualified attorneys. The defendant further suggests that the trial judge

erred by limiting his options for co-counsel to only that provided by the public

defender’s office, when additional counsel could have been appointed from the

“office of the State Public Defender.”

At issue during the January 24, 2011 hearing was Louisiana Supreme Court

Rule XXXI(A)(1)(a), which provides that in cases of indigent capital defendants,

the trial court “shall appoint no less than two attorneys to represent the defendant.

At least two of the appointed attorneys must be certified as qualified to serve in

capital cases . . . .” “[T]o determine defendant’s waiver of co-counsel at

defendant’s capital murder trial,” the State had filed a “Motion to Determine

Waiver of Co-Counsel,” which was before the court on January 24, 2011. Also

present at the January 24, 2011 hearing was Randall Fish of the local public

defender’s office.

During the hearing, not only did the trial court inform the defendant of his

rights, but the district attorney also stated that “the intent of the rule in having two

attorneys is, if one attorney gets up there in the guilt phase and the jury finds the

defendant guilty there is a theory out there that that attorney has lost his . . .

‘creditability’ . . . with the jury. And then another attorney should step up to

handle . . . the penalty phase.” Mr. English advised the court that he did “not have

another counsel that intends to participate at trial.” After the defendant and trial

counsel conferred, the following colloquy occurred:

MR. ENGLISH: It is my understanding that if the Court appoints a

co-counsel, that co-counsel . . . would be a public defender. Mr.

McCoy has . . . stated to me that he does not want the public

defender’s office appointed as co-counsel in this case. Okay. I want

to state for the record, Your Honor . . . I’m not capital certified; we

waived that . . . . I am confident, Your Honor, that if I’m allowed to

have all the tools that I can adequately give him a defense.

53

* * *

THE COURT: . . . The only option that I would have, if I

appointed anyone, would be the public defender’s office.

MR. MCCOY: I can’t get a conflict of interest attorney, Your

Honor? Outside the public defender’s office? From what I

understood, Your Honor, I am entitled to a conflict of interest

attorney, Your Honor.

[DISTRICT ATTORNEY]: Your Honor, there’s never been any

conflict of interest.

THE COURT: Not that I know of . . . . Mr. McCoy, there has not

been a conflict of interest. The public defender’s office would have

been appointed in your case and has been appointed in your case.

You retained private counsel through Mr. English . . . . And then you

stated that you wished to waive his capital certification on the record.

The other side of that is that if this Court were to appoint anyone the

Court would have to appoint the public defender’s office. That’s the

only persons that the Court could appoint . . . . So the Court would

only have the option to appoint the public defender’s office. If the

public defender’s office felt that there was a conflict in any way then

they would appoint conflict counsel at that point. But I would have to

go back to the public defender’s office to appoint someone as a co-

counsel, Mr. McCoy . . . Do you wish this Court to appoint a public

defender office attorney as a second attorney? That is up to you, Mr.

McCoy.

* * *

MR. ENGLISH: I . . . would not object to a co-counsel being

appointed but that’s up to Mr. McCoy.

MR. MCCOY: Your Honor, I’m undecided at this moment . . .

that’s a hard decision to make, Your Honor. This decision that I

make, Your Honor . . . will be a decision that will mitigate the rest of

my life, Your Honor.

* * *

MR. ENGLISH: I think . . . to make sure that we move forward

with this that the Court appoint a public defender as a second counsel

in this case, Your Honor.

THE COURT: Mr. Fish?

MR FISH: Your Honor, on behalf of the public defender’s office

we’re going to certainly object . . . to being appointed as co-counsel . .

. . Mr. McCoy has private counsel, Your Honor.

* * *

MR. ENGLISH: . . . [B]ecause the public defender’s office objects,

54

Your Honor, I withdraw that . . . request.

* * *

THE COURT: Okay, then that request has been withdrawn.

Thereafter, trial counsel again conferred with the defendant and the

following statements were made:

MR ENGLISH: . . . Your Honor, Mr. McCoy wants me to put on

the record I have other lawyers who are advising me on this case,

including the public [defender’s] office . . . . I will be the only lawyer

that will be handling the trial, Your Honor, but in terms of . . . helping

prepare me for this case, I have . . . relied on both Pam Smart [and]

James Gray . . . [of] . . . the state public defender’s office, and . . .

several mitigation experts, Your Honor . . . Mr. McCoy is now . . .

going to state, Your Honor, that he waives appointing a second person

to the case. Correct, Mr. McCoy?

MR. MCCOY: You’re correct.

The January 24, 2011 hearing concluded with the defendant waiving

appointment of a Rule XXXI second attorney to his case.

The counsel issue was back before the court on February 3, 2011, following

remand from the Second Circuit, which included a strong directive to the trial court

“to ensure that Mr. McCoy is, or has been, fully apprised on the record of the

benefits of having two capital-defense qualified attorneys and that McCoy has

knowingly and intelligently waived same.” State v. McCoy, 46,394 (La. App. 2

Cir. 2/3/11). In response to the Second Circuit’s February 3rd ruling, the State

filed, on the same day, its motion to appoint additional counsel. The trial court

held a hearing on the motion, upon its filing, on February 3rd. Randall Fish, of the

public defender’s office was also present at the February 3rd hearing, when the

trial court fully explained the situation to defendant:

THE COURT: Mr. McCoy . . . you have been declared indigent . . .

for purposes of being able to get mitigation experts. There is a

Supreme Court rule that is out there that states that if you’re declared

indigent that you have the right to counsel, which you’ve already been

advised of that right to counsel, that you would be given -- Mr.

English would still be your counsel but that . . . death qualified

attorneys would be appointed to represent you in this matter. That

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would come through the public defender’s office, which they would

appoint death qualified personnel to be able to represent you in this

case. Mr. Marvin has asked that those two people be qualified and

that you be appointed through the public defender’s office death

qualified individuals. That usually comes through CAPOLA, which is

the Capital Assistance Program if I’m stating that correctly, and

CAPOLA would be appointed and determine who those counsels are .

..

[DISTRICT ATTORNEY]: I think that the Court should . . .

appoint the public defender’s office with instructions that it should

appoint two death qualified people and there may be one from this

local PDO and one from CAPOLA or maybe more tha[n] one.

* * *

MR. ENGLISH: . . . Mr. McCoy has an objection . . . if the counsels

come from the public defender’s office here locally. I have explained

to him that . . . more likely than not . . . that those two attorneys would

be appointed from the Louisiana Capital Defense Association. Which

means they . . . do not work for the public defender’s office. They are

death penalty qualified. More likely than not they will be two

attorneys in private practice who . . . work with this association. And

that the public defender’s office will merely be retaining those people.

But nobody from the local public defender’s office will be involved in

this case and . . . would the local public defender’s office agree with

that?

* * *

MR. FISH: Randall Fish, on behalf of the public defender’s office.

Your Honor, at this time we don’t know. As far as I know a capital

case through the public defender’s office would be assigned to me and

Larrion Hillman. I don’t know, at this point, I certainly don’t know

that the Capital Assistance Project would be secured through the

public defender’s office . . . at the present time. And in addition, we

may or may not seek . . . review of being appointed in addition to Mr.

English. That’s something I have to discuss with Ms. Smart and make

a decision on in the next day or two. But I do see some practical

problems with appointed counsel being appointed in addition to

private counsel . . . . [I]f we’re to be appointed, I think it should be our

responsibility to solely handle the defense of the case and not share

that responsibility with Mr. English.

* * *

MR. ENGLISH: Your Honor, the Second Circuit made a certain

suggestion, the D.A. has filed a motion . . . I don’t object to additional

counsel being appointed to support me. [M]y ego is not such as that .

. . . I’m confident that under the facts of this case that I can do what

needs to be done. But certainly having two additional attorneys in no

way offends me. Mr. McCoy, Your Honor, does not believe . . . that

the public defender’s office will adequately represent him . . . . He

would not have any problems, Your Honor, if the lawyers come from

56

the Louisiana Capital Defense Association. In light of everything that

Mr. Fish has said . . . I have no response . . . to that. I’m simply trying

to communicate where I believe my client’s position is . . . . I

personally do not have any problem and recommended to Mr. McCoy

that you cannot have to[o] many lawyers in a case like this . . . . I’m

perfectly comfortable proceeding as a single attorney because I’m

relying upon the expertise -- there are other . . . capital defense

lawyers who have been providing me expertise and direction in this

case. I understand it is a capital case; I feel confident . . . that I can

represent Mr. McCoy. But I welcome any help if the Court so deems

so and the district attorney’s office deems so. The problem is with

Mr. McCoy, Your Honor, . . . he doesn’t have any confidence in the

public defender’s office.

THE COURT: All right. Mr. McCoy?

MR. ENGLISH: Have I said that correctly, Mr. McCoy?

MR. MCCOY: You’re exactly right, sir.

THE COURT: . . . The district attorney has asked that additional

capital qualified personnel be appointed to represent you, sir. And I

am entertaining that motion at the present time. The only way that I

can appoint anybody is that it has to be appointed through the public

defender’s office. And the public defender’s office would of course

decide who would be capital qualified to be able to represent you, and

assist Mr. English, that is my option. From listening to Mr. English

you’re stating that you want Mr. English and Mr. English alone to

represent you and you do not want the public defender’s office to

represent you. Is that what this Court is hearing?

MR. MCCOY: Well what I’m saying today, Your Honor, I would

love, you know, to have my prior representation of Mr. English but

the assistance of the public defender board, no, sir, it’s not needed by

myself. I have no confidence in the public defender board. I’ve had

prior run-ins with the public defender board. And if I’m not mistaken,

Judge, I mean, please correct me if I’m wrong, there are some outside

officials that can be retained through the -- the Louisiana Association

for other conflict of interest attorneys, Your Honor. I mean, this is my

life, Your Honor . . . . I understand the statements . . . that are

validated before the Court, Your Honor, but I have no second chance

at this, Your Honor. And I don’t want the Court to put counsel on me,

Your Honor, that I don’t want. I object of this, Your Honor.

* * *

[Mr. English confers with Mr. McCoy off the record.]

* * *

THE COURT: Mr. McCoy, are you telling this Court that you

fully waive the public defender’s office being appointed?

Understanding that Mr. English is not capital qualified. And that you

57

waive these two attorneys, I mean, you waive the Court appointing the

public defender’s office with capital qualified attorneys to be sitting

on this case? Is that what you’re telling this Court?

MR. MCCOY: Your Honor, I’m telling this Court today that I am

confident with Mr. English but with other legal assistance beyond the

public defender’s office, Your Honor. Beyond the public defender’s

office, Your Honor. Because if they was to appoint me -- Your

Honor, this is to better represent the Court as well. If they were to

appoint me some counsel from the public defender’s office, I’m going

to fire them, Your Honor. I’m just putting it qualified on the record;

I’m going to fire them.

THE COURT: So you are waiving any representation by the

public defender’s office fully and voluntarily, is that what I hear you

say?

MR. MCCOY: Yes, I don’t want anybody from the public

defender’s office, Your Honor. But beyond the public defender’s

office, Your Honor, conflict of interest attorney, I will accept . . . from

the Louisiana Defense Association of the Capital Association, I will

accept, Your Honor.

THE COURT: Mr. McCoy, I don’t have that authority. The only

authority I can do is appoint the public defender’s office. I will ask

you again, are you fully, and knowingly, and voluntarily waiving the

public defender’s office to be appointed as co-counsel with Mr.

English?

MR. MCCOY: Yes, I am, Your Honor.

Thereafter, the defendant acknowledged that he did not know who the public

defender’s office might assign to his case, but he reiterated that he had past

dealings with Mr. Fish and Ms. Smart, and consequently, he did not want as

counsel any representative from the public defender’s office, even someone he had

never known before. The district attorney re-emphasized the rationale underlying

Rule XXXI to the defendant:

[DISTRICT ATTORNEY]: . . . And you understand the reason the

Court is trying to appoint two lawyers is if you end up being found

guilty and this case proceeds into the penalty phase to determine

whether you end up with a death penalty or life in prison. The reason

the Supreme Court rule says that you should appoint two attorneys is

because that attorney that handled the guilt phase of the trial has failed

. . . . And the jury might possibly have lost confidence in anything that

he or she says and not believe them. So in the penalty phase when

that same lawyer stands up there and says, ladies and gentlemen, you

only have two options here give my client death or give him a life

58

sentence. There is no not guilty at that point.

The defendant responded affirmatively, indicating, “Uh-huh.” The district attorney

then asked the defendant, “Do you understand that if the Court appoints the public

defender’s office and you end up with two lawyers that you don’t like . . . you

always have the right to terminate those lawyers?” The defendant answered:

MR. MCCOY: Yes, sir. I just spoke that on the record; I’m fully

aware of that. But the repercussions of that is this is time consuming .

. . . and most of all . . . that is against my best judgment . . . to even

obtain someone that I have no confidence in whatsoever . . . .

Thereafter, the trial judge reiterated the purpose of appointing two attorneys

to represent an indigent capital defendant and then asked for the defendant’s

confirmation:

THE COURT: Mr. McCoy, [the district attorney] has covered,

like I tried to cover with you, what the Supreme Court is stating. The

Supreme Court has stated that . . . for some reason you go into the

guilt phase and they find you guilty, and then it goes to a penalty

phase. If Mr. English is the only attorney the Supreme Court has

stated that he may lose creditability and that may affect you in the

penalty phase as [the district attorney] has stated before. That is the

reason behind the Supreme Court statute . . . . My only recourse is to

appoint the public defender’s office. Do you want me to appoint the

public defender’s office as second counsel?

MR. MCCOY: For the record, again, Your Honor, I’m totally

opposed to that and most of all, Your Honor. I mean, if you really

look at it, Your Honor, I choose not to be strong armed to take a

public defender’s aspect of secondary counsel when that’s totally

against my wishes, Your Honor. I know the Court by verbatim can

work some other appointment of capital specialist out -- other than the

public defender board, Your Honor. Because the public defender

board may can finance someone through the public defender’s office

to represent me in another . . . jurisdiction.

THE COURT: The only option . . . this Court has is once you’re

declared indigent is to appoint the public defender’s office. You

understand all of your rights, is that correct, Mr. McCoy?

MR. MCCOY: That’s exactly correct, Your Honor.

THE COURT: You understand that you have the right to have

another attorney appointed to represent you through the public

defender’s office, is that correct?

MR. MCCOY: Yes, sir, but I don’t want that, Your Honor.

59

THE COURT: And you are fully and voluntarily waiving those

rights, is that correct?

MR. MCCOY: I’m waiving the right of someone from the public

defender’s office representing me, Your Honor, because --

THE COURT: And you’re doing that knowingly and voluntarily,

is that correct?

MR. MCCOY: Yes, sir.

THE COURT: All right, thank you, sir. Then I will not appoint

the public defender’s office at this time . . . .

Nevertheless, the defendant now suggests that, even after these

comprehensive exchanges, he “was denied” the right to qualified counsel based on

an “inadequate waiver.”

Importantly, Rule XXXI does not create a statutory right to two attorneys for

indigents facing a capital trial. “The Rules shall not be construed to confer

substantive or procedural rights in favor of any accused beyond those rights

recognized or granted by the United States Constitution, the Louisiana

Constitution, the laws of the state, and the jurisprudence of the courts.” Louisiana

Supreme Court Rule XXXI(B). 40 In State v. Jones, 97-2593 at pp. 5-6, 707 So.2d

at 978, the trial court faced the same situation and determined that for purposes of

Rule XXXI, co-counsel could be appointed notwithstanding that the Jones

defendant had a retained, and subsequently pro bono, counsel, presaging the

scenario at hand:

It is plainly preferable to have two attorneys in a capital case and we

find no reason that the presence of collaterally retained private

counsel should eliminate the need or countermand the advantages of

two. Further, we can discern no reasoning nor find authority for the

proposition that an indigent defendant is entitled to two State-funded

attorneys, but an indigent defendant who has retained counsel from a

collateral source is not entitled to a second counsel. Certainly, it is in

the best interest of the taxpayer to encourage collaterally obtained

counsel at no cost to the public fisc. It would therefore defy logic to

40

We note that the language of Rule XXXI expressly states that “[i]n all capital cases, the

following standards shall be applicable to the defense of indigents . . . .” (Emphasis added.)

60

punish such a defendant by refusing to appoint co-counsel because he

has, in effect, saved IDB funds through retention of private counsel.

However, we reiterate that an indigent capital defendant has no

recognized right to two attorneys and in some cases may not desire a

second appointed counsel. In such a case, it would be unjust to

require a defendant to accept appointed counsel along with his

retained counsel. Because there is no right to second counsel, because

a defendant may oppose the appointment, and because other

unforeseen reasons may weigh against appointment of second

counsel, such an appointment is left to the discretion of the trial court.

In the subsequent case of State v. Koon, 96-1208 (La. 5/20/97), 704 So.2d

756, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997), the

defendant claimed he was denied the assistance of co-counsel to which he was

entitled under Rule XXXI. Like the instant defendant, the Koon defendant became

unhappy with his public defender early on, and the trial court appointed a solo

practitioner as lead counsel, and the lead defense counsel recruited a second

attorney who later abandoned the case, leaving Koon with only his original defense

counsel to try the case. Koon, 96-1208 at pp. 20-21, 704 So.2d at 769. The Koon

defendant waived a second defense counsel, and this court affirmed his conviction

and death sentence, noting that Rule XXXI “does not give rise to an affirmative

right to multiple attorneys in capital trials.” Koon, 96-1208 at p. 21, 704 So.2d at

769. The court found that Koon had waived the right to co-counsel after

discussion with his original defense counsel and advisement by the judge. Id.

Koon’s subsequent counseled post-conviction application, raising ineffective

assistance of trial counsel, based in part on the absence of a second trial counsel,

was denied, and this court denied certiorari. State ex rel. Koon v. State, 3-93-

1268 (19th J.D.C. 3/21/00), writ denied, 00-1205 (La. 1/26/01), 781 So.2d 1258.

However, over a decade after his capital trial, Koon’s conviction for three counts

of first degree murder and his death sentence were vacated on federal habeas

review for ineffective assistance of counsel. In granting Koon’s petition for writ of

habeas corpus, the federal district court observed that Koon’s private counsel

61

rendered ineffective assistance in four respects; the most egregious omission was

that defense counsel failed to interview and investigate the only known witness to

the crime. Koon v. Cain, 2007 U.S. Dist. LEXIS 97113, *26-30 (M.D. La. Feb. 1,

2007). The federal court also relied on the fact that defense counsel: (1) presented

a mental-health/status defense at trial, yet only hired his chief expert witness on the

issue one day before trial; (2) failed to use the assistance of co-counsel; and (3)

failed to adequately prepare Koon for testimony at trial. Koon v. Cain, 2007 U.S.

Dist. LEXIS 97112 *2 (M.D. La. Apr. 11, 2007). The Koon court found that

counsel’s decision to proceed to trial alone without the aid of at least one other

attorney was part of the basis of its ruling, observing that “although an ‘affirmative

right’ to two attorneys may not exist in Louisiana, defense counsel’s refusal to be

assisted by competent co-counsel can factor into the ineffective assistance

analysis.” Koon v. Cain, 2007 U.S. Dist. LEXIS 97113 at *31-32. The Fifth

Circuit affirmed the district court’s ruling. Koon v. Cain, 277 Fed.Appx. 381 (5th

Cir. 2008).

Importantly, the federal district court granted habeas relief in Koon v. Cain

on February 1, 2007, some seven months before the Louisiana Public Defender Act

of 2007 became effective, and over three years before the Capital Defense

Guidelines (La. Admin. Code, Title 22, Section 901 et seq.) were promulgated in

May 2010, as discussed hereinafter. The statutory enactments, LSA-R.S. 15:141-

184, and Capital Defense Guidelines became effective after Koon v. Cain and

suggest that Koon may be distinguishable from the instant case, given those

statutes and guidelines place the ongoing responsibility for filling out the defense

team on the state public defender, which was not the statutory landscape when

Koon v. Cain was decided.

Notably, Koon v. Cain presented a case of ineffective assistance of counsel,

decided under the principles announced in Strickland v. Washington, 466 U.S.

62

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). By appellate counsel’s choice, he

specifically has not raised a claim of ineffectiveness of counsel in this direct

appeal, and thus, such a claim is not before the court.

In the present case, at the hearing on the motion for new trial, John Di Giulio

of the Louisiana Public Defender Board (“LPDB”), formerly the Louisiana

Indigent Defense Assistance Board (“LIDAB”), was called as a witness. Mr. Di

Giulio testified that Randall Fish’s objection, on behalf of the local public

defender’s office, to being appointed alongside retained counsel (Mr. English) was

inconsistent with the Capital Defense Guidelines, enacted in May 2010,

approximately one year before the defendant’s capital trial.

Mr. Di Giulio explained that under the Capital Defense Guidelines, the

district public defender or the state office is responsible for supplying the

additional resources to bring the defense team into compliance with the guidelines,

even for a capital defendant with retained or pro bono counsel. He stated that the

minimum compliance for capital defense is two counsel, at least one of whom is

certified as a capital defense qualified lead counsel. Mr. Di Giulio testified that his

office provides supervision of capital trial counsel, receives monthly reports of

every capital trial in the state, and contracts with a number of non-profit

corporations to provide indigent capital defense. Mr. Di Giulio testified

specifically that Randall Fish, in objecting to the local public defender’s office

being appointed as co-counsel to serve alongside Mr. English, expressed a position

inconsistent with the guidelines and, thus, was not accurate. According to Mr. Di

Giulio, the notion expressed by the trial judge in this case - that co-counsel would

have to be appointed from the local public defender’s office - seemed to be the

understanding of the parties at the time, but it was not the only option. Mr. Di

Giulio posited that, in a case such as the present one - when the local public

defender’s office had been involved and then removed - it would have been more

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