JOHNSON, Chief Justice1
This is a direct appeal under La. Const. art. V, § 5 (D) by defendant, Brian Douglas Horn. On April 12, 2010, defendant was indicted by a grand jury in DeSoto Parish for the first-degree murder of 12-year-old Justin Bloxom. Following the close of evidence at trial, a jury unanimously found defendant guilty as charged and, at the conclusion of the penalty phase of the trial, recommended a sentence of death. The district court sentenced defendant to death in accordance with that recommendation. In his appeal to this court, defendant raises seventy assignments of error. Finding merit in defendant's assignment of error asserting a violation of his Sixth Amendment right to counsel, we vacate defendant's conviction and sentence and remand this matter to the district court for a new trial.
FACTS AND PROCEDURAL HISTORY
On March 29, 2010, 12-year-old Justin Bloxom was staying overnight at a friend's house in Stonewall, Louisiana, and texting with a person he believed to be a 14-year-old girl. The "girl" urged Justin to sneak out of the house so that the two could meet for a sexual encounter, and texted that she would send a taxi to get him. In reality Justin was texting defendant, Brian Horn. Shortly after three o'clock in the morning of March 30, 2010, Justin left his friend's house and climbed into defendant's taxi. Defendant leased and drove a green Action Taxi, Cab M-28. The last text message sent by Justin on March 30, 2010 at 3:13 a.m. stated "Cab died." That message was received by defendant's cell phone.
Later that morning, Justin's friend reported him missing. Sheriff's deputies arrived at the friend's home and learned from neighbors that a green Action Taxi Cab was seen in the neighborhood the night before. Additionally, another officer informed the investigating deputies that he had noticed a green Action Taxi cab parked on the side of the road on US Highway 171 in the very early hours of the morning and had stopped to give aid. The driver of the taxi, later identified by the officer as Brian Horn, advised the officer that he had run out of gas and lost his key, and someone from the taxi company was bringing him another key. Several other witnesses confirmed seeing the taxi on the side of the road in the early morning hours and recalled speaking to defendant, who informed them that he had run out of gas and lost his keys. Investigating officers subsequently searched the wooded area on the side of Highway 171 where defendant's taxi had been stopped and found Justin's body in a shallow pool of water 30-40 yards from the highway. The key to defendant's taxi was later found by metal detector in the same general area.
Defendant's brother, Kevin Horn, learned defendant was a person of interest in Justin's murder later that day. He accompanied defendant to Action Taxi, where defendant returned the taxi after cleaning it out. Kevin then drove defendant to the police station. Kevin gave police officers consent to search his vehicle, which resulted in the seizure of evidence, including an AT & T SIM card belonging to defendant.
On April 12, 2010, defendant was indicted by a grand jury in DeSoto Parish for first-degree murder. In its Bill of Particulars, the state outlined its intent to prove defendant committed first-degree murder pursuant to La. R.S. 14:30(A)(1) while engaged in the perpetration or attempted perpetration of aggravated kidnapping or second degree kidnapping. Specifically, that statutory provision defines first-degree murder as the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping , aggravated escape, aggravated arson, aggravated or first degree rape, forcible or second degree rape, aggravated burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles.
(Emphasis added). La. R.S. 14:44 addresses the crime of "aggravated kidnapping," and provides, in relevant part:
Aggravated kidnapping is defined as "the doing of any of the following acts with the intent thereby to force the victim,
or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender's actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
Likewise, La. R.S. 14:44.1 provides for second-degree kidnapping:
A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(3) Physically injured or sexually abused ;
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another ; or
(3) The imprisoning or forcible secreting of any person.
(Emphasis added).
At trial, the state presented evidence of defendant's guilt including: forensic evidence of the SIM card revealing explicit text messages sent from defendant's cell phone to Justin's cell phone; evidence of a latent fingerprint from the taxi that matched Justin; and autopsy results showing Justin died of suffocation, with possible strangulation. The coroner, Dr. James Traylor, testified Justin died from being smothered, and opined that the perpetrator smothered Justin while on Justin's back. Dr. Traylor identified several areas of "petechiae" or ruptured blood vessels in Justin's eyes and on his face and forehead, which would have required the perpetrator to apply pressure to some part of the body to prevent the drainage of blood to the heart. Dr. Traylor identified an abraded contusion on the inside of Justin's mouth consistent with the perpetrator compressing his lips and mouth against his braces. Dr. Traylor also described numerous abrasions on Justin's body and testified they were anti-mortem wounds. In sum, the state presented photos and testimony from Dr. Traylor that (1) Justin exhibited injuries on his neck, face, hands, back shoulder, and torso; (2) the injuries occurred before death; and (3) the injuries were not solely attributable to smothering. The state also presented testimony from defendant's wife and another adult woman regarding their sexual relations with defendant, with the state eliciting testimony that defendant sometimes choked them during consensual sex. Defendant's wife testified they were "swingers" and sometimes engaged in sexual relations with other adult men and women. The other woman testified defendant suggested that a "younger" man join them in sexual activities.
During the trial, defense counsel conceded defendant killed Justin.
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JOHNSON, Chief Justice1
This is a direct appeal under La. Const. art. V, § 5 (D) by defendant, Brian Douglas Horn. On April 12, 2010, defendant was indicted by a grand jury in DeSoto Parish for the first-degree murder of 12-year-old Justin Bloxom. Following the close of evidence at trial, a jury unanimously found defendant guilty as charged and, at the conclusion of the penalty phase of the trial, recommended a sentence of death. The district court sentenced defendant to death in accordance with that recommendation. In his appeal to this court, defendant raises seventy assignments of error. Finding merit in defendant's assignment of error asserting a violation of his Sixth Amendment right to counsel, we vacate defendant's conviction and sentence and remand this matter to the district court for a new trial.
FACTS AND PROCEDURAL HISTORY
On March 29, 2010, 12-year-old Justin Bloxom was staying overnight at a friend's house in Stonewall, Louisiana, and texting with a person he believed to be a 14-year-old girl. The "girl" urged Justin to sneak out of the house so that the two could meet for a sexual encounter, and texted that she would send a taxi to get him. In reality Justin was texting defendant, Brian Horn. Shortly after three o'clock in the morning of March 30, 2010, Justin left his friend's house and climbed into defendant's taxi. Defendant leased and drove a green Action Taxi, Cab M-28. The last text message sent by Justin on March 30, 2010 at 3:13 a.m. stated "Cab died." That message was received by defendant's cell phone.
Later that morning, Justin's friend reported him missing. Sheriff's deputies arrived at the friend's home and learned from neighbors that a green Action Taxi Cab was seen in the neighborhood the night before. Additionally, another officer informed the investigating deputies that he had noticed a green Action Taxi cab parked on the side of the road on US Highway 171 in the very early hours of the morning and had stopped to give aid. The driver of the taxi, later identified by the officer as Brian Horn, advised the officer that he had run out of gas and lost his key, and someone from the taxi company was bringing him another key. Several other witnesses confirmed seeing the taxi on the side of the road in the early morning hours and recalled speaking to defendant, who informed them that he had run out of gas and lost his keys. Investigating officers subsequently searched the wooded area on the side of Highway 171 where defendant's taxi had been stopped and found Justin's body in a shallow pool of water 30-40 yards from the highway. The key to defendant's taxi was later found by metal detector in the same general area.
Defendant's brother, Kevin Horn, learned defendant was a person of interest in Justin's murder later that day. He accompanied defendant to Action Taxi, where defendant returned the taxi after cleaning it out. Kevin then drove defendant to the police station. Kevin gave police officers consent to search his vehicle, which resulted in the seizure of evidence, including an AT & T SIM card belonging to defendant.
On April 12, 2010, defendant was indicted by a grand jury in DeSoto Parish for first-degree murder. In its Bill of Particulars, the state outlined its intent to prove defendant committed first-degree murder pursuant to La. R.S. 14:30(A)(1) while engaged in the perpetration or attempted perpetration of aggravated kidnapping or second degree kidnapping. Specifically, that statutory provision defines first-degree murder as the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping , aggravated escape, aggravated arson, aggravated or first degree rape, forcible or second degree rape, aggravated burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles.
(Emphasis added). La. R.S. 14:44 addresses the crime of "aggravated kidnapping," and provides, in relevant part:
Aggravated kidnapping is defined as "the doing of any of the following acts with the intent thereby to force the victim,
or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender's actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
Likewise, La. R.S. 14:44.1 provides for second-degree kidnapping:
A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(3) Physically injured or sexually abused ;
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another ; or
(3) The imprisoning or forcible secreting of any person.
(Emphasis added).
At trial, the state presented evidence of defendant's guilt including: forensic evidence of the SIM card revealing explicit text messages sent from defendant's cell phone to Justin's cell phone; evidence of a latent fingerprint from the taxi that matched Justin; and autopsy results showing Justin died of suffocation, with possible strangulation. The coroner, Dr. James Traylor, testified Justin died from being smothered, and opined that the perpetrator smothered Justin while on Justin's back. Dr. Traylor identified several areas of "petechiae" or ruptured blood vessels in Justin's eyes and on his face and forehead, which would have required the perpetrator to apply pressure to some part of the body to prevent the drainage of blood to the heart. Dr. Traylor identified an abraded contusion on the inside of Justin's mouth consistent with the perpetrator compressing his lips and mouth against his braces. Dr. Traylor also described numerous abrasions on Justin's body and testified they were anti-mortem wounds. In sum, the state presented photos and testimony from Dr. Traylor that (1) Justin exhibited injuries on his neck, face, hands, back shoulder, and torso; (2) the injuries occurred before death; and (3) the injuries were not solely attributable to smothering. The state also presented testimony from defendant's wife and another adult woman regarding their sexual relations with defendant, with the state eliciting testimony that defendant sometimes choked them during consensual sex. Defendant's wife testified they were "swingers" and sometimes engaged in sexual relations with other adult men and women. The other woman testified defendant suggested that a "younger" man join them in sexual activities.
During the trial, defense counsel conceded defendant killed Justin. However, defense counsel argued that the jury could not find defendant guilty of first-degree murder because the state failed to prove defendant had specific intent to kill and failed to prove defendant was engaged in an aggravated kidnapping or a second-degree kidnapping when Justin died. The defense rested in the culpability phase of the trial without calling any witnesses.
A unanimous jury found defendant guilty of first-degree murder and determined defendant should be sentenced to death. The matter is now before this court on defendant's direct appeal under La. Const. art. V, § 5 (D).
DISCUSSION
Sixth Amendment Violation (Assignment of Error # 43)
Defendant argues his Sixth Amendment right to counsel was violated when his attorneys conceded his guilt over his explicit objection. We find this assignment of error has merit, and requires us to vacate defendant's conviction and sentence.
The Sixth Amendment guarantees the accused in a criminal proceeding the right to have "the Assistance of Counsel for his defence." U.S. Const. amend. VI. It "does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense." Faretta v. California , 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). "The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." 422 U.S. at 819-20, 95 S.Ct. 2525 (footnote omitted). Implicit in this right is the accused's authority "to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Jones v. Barnes , 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983). However, certain other decisions, such as decisions relative to trial management belong to counsel:
As to many decisions pertaining to the conduct of the trial, the defendant is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney. Thus, decisions by counsel are generally given effect as to what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence. Absent a demonstration of ineffectiveness, counsel's word on such matters is the last.
New York v. Hill , 528 U.S. 110, 115, 120 S.Ct. 659, 664, 145 L.Ed.2d 560 (2000) (internal quotations and citations removed).
The issue of whether the decision to admit guilt as part of the defense objective belongs to counsel or to the accused was recently addressed by the United States Supreme Court in McCoy v. Louisiana , --- U.S. ----, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018). In McCoy , defense counsel, over defendant's objections, told the jury that defendant was guilty of the triple murder of his family members, but sought leniency in the penalty phase due to defendant's serious mental and emotional issues. McCoy testified in his own defense maintaining his innocence by asserting an implausible alibi defense. 138 S.Ct. at 1506-07. The jury found defendant guilty of three counts of first-degree murder and sentenced defendant to death. Id. at 1507. This court affirmed the convictions and sentence. State v. McCoy , 14-1449 (La. 10/19/16), 218 So.3d 535, cert. granted in part , --- U.S. ----, 138 S.Ct. 53, 198 L.Ed.2d 781 (2017), and rev'd and remanded , --- U.S. ----, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018). In reversing this court's ruling, the Supreme Court considered whether it is unconstitutional to allow defense counsel to concede guilt over the defendant's unambiguous objection:
We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right "to have the Assistance of Counsel for his defence," the Sixth Amendment so demands. With individual liberty-and, in capital cases, life-at stake, it is the defendant's prerogative,
not counsel's, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.
Id. at 1505. The Court reasoned that "just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant's own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial." 138 S.Ct. at 1508.
In this case, Mr. Horn argues his Sixth Amendment right to counsel was violated when his attorney conceded his guilt over his explicit objection. The record demonstrates that defendant's attorney admitted that defendant killed Justin and also suggested to the jury that the evidence supported a finding that he molested, or attempted to molest Justin. Counsel specifically told the jury he was not asking them to find defendant "not guilty," and further stated that the facts fit second-degree murder or manslaughter. The record further demonstrates that Mr. Horn disagreed with his counsel's decision to concede guilt as part of the defense strategy and that defendant made the district court aware of the disagreement both before and during the trial.
On February 13, 2013, during the pre-trial stage of the case, defendant filed a pro se "Motion for Evidentiary Hearing on the Defendant's Claims of Ineffective Assistance of Counsel with Incorporated Memorandum of Law" wherein defendant asserted that his defense had been refused by his attorneys. During a pre-trial hearing on February 20, 2013, defense counsel and the court discussed defendant's motion and counsel's refusal to use the defense requested by defendant, but the court refused to get involved in the dispute and dismissed the motion:
Counsel: I have one question for you. Perhaps you're not the right person. Perhaps I need to ask somebody in Baton Rouge. I read his pro se motion and it was denied. One of the things he said in there is that I didn't want to use his defense in the guilt phase. I did not want to use the defense he wants to use in the guilt phase. Now, am I supposed to do what I think is best as an attorney for my client or am I supposed to be a puppet and do exactly what he wants me to do on these appointed cases? * * *
Court: [ ] The allegations in the motions with regard to you are things that no court can rule on. I cannot get in the middle of the attorney/client privilege, communication, non-communication, is it enough, is it not enough. The only thing that I can judge, as I understand, are Washington versus Strickland and the progeny is the performance at trial and the results as compared to the amorphous standard out there of the criminal defense counsel in capital cases. That's all. And that motion did not even come close to approaching that. * * * I think that is going to be something you and Mr. Gorley are going to have to sit down with the bosses and make the tactical decision and the case, right or wrong, is contingent upon that. And some, either this court or another reviewing court will have to make that decision whether that was the right or wrong decision. I can't, you know, I can't stop it.
During his closing argument, defense counsel specifically stated to the jury:
• "We have never contested any of that, none of it. The only thing that we have contested is the intent, the specific intent. The judge will instruct you that specific intent is an element of the crime of first-degree
murder. I'm not going to ask you to like Brian Horn because what he did was awful. It was awful. Sending those text messages is unforgivable. That's not what he's charged with. He's charged with first-degree murder, a crime for which he could get the death penalty. They have to prove specific intent. They didn't prove it, and I'll get to that in a minute."
• "Nobody knows what happened. Nobody knows what happened out on 171 when the cab-when they ran out of gas. We know that Brian Horn killed Justin Bloxom."
• "I'm not asking you to let him walk the streets. I'm not asking you to find him 'not guilty.' "
• "Look, I'm not asking you to let him go. I'm not asking you to let him go. I never once stood up here and said 'Find him not guilty.' I'm asking you to find him not guilty of first-degree murder I mean, I think the facts fit manslaughter, but if you don't want to accept that because for whatever reason, you can convict him of second-degree murder."
• "Okay, I know y'all are tired of hearing me. We contested nothing in this case. We admitted everything except that they couldn't prove it was a first-degree murder, and they haven't proved it."
• Defense counsel argued again to the jury that he was not asking them to find defendant "not guilty," but asking them to find defendant not guilty of first-degree murder.
• Defense counsel read the definitions of indecent behavior with a juvenile and molestation to the jury.
• Defense counsel suggested a scenario to the jury wherein Justin realized there was no girl involved, resulting in a struggle; counsel suggested an alternative wherein defendant could have tried to molest Justin, resulting in struggle.
Following closing arguments, defendant objected to his counsel's concession of guilt, filing "Defendant's Pro Se Formal Written Objections of Trial Errors & Ineffective Assistance of Counsel and Motion for Relief Therefrom." Defendant objected to counsel's closing arguments conceding guilt to any of the lesser included offenses when he specifically instructed counsel not to do so. Defendant stated he instructed counsel only to make an argument of accidental killing via the negligent homicide statute. Defendant further objected to counsel's closing argument wherein he suggested defendant was guilty of indecent behavior with a juvenile and/or child molestation. The district court denied defendant's objections without a hearing.
In this court, defendant asserts the Supreme Court's decision in McCoy is dispositive and requires a reversal of his conviction. By contrast, the state suggests McCoy is not controlling in this case because defendant did not claim outright innocence and instructed his attorneys to make an argument for accidental killing under the negligent homicide statute. After review of the record and considering the Court's decision in McCoy , we reject the state's argument and decline to restrict application of the holding in McCoy solely to those cases where a defendant maintains his absolute innocence to any crime. McCoy is broadly written and focuses on a defendant's autonomy to choose the objective of his defense. Although Mr. McCoy's objective was to pursue a defense of innocence by presenting an alibi defense, Mr. Horn's objective was to assert a defense of innocence to the crime charged and the lesser-included offenses, i.e. asserting his innocence to any degree of murder. Mr. Horn was charged with first-degree murder. The only verdicts the jury was permitted to enter were "guilty," "guilty of second degree murder," "guilty of manslaughter," or "not guilty." See La. C.C.P. art. 814. The jury would not have been permitted to enter a plea relative to negligent homicide. The fact that defendant instructed his attorney to admit guilt to this different crime as part of his defense objective did not give defense counsel the authority to admit guilt to the crime charged or the lesser-included crimes, and does not cause us to disregard the holding of McCoy . While defense counsel may use his professional judgment to develop defense theories and trial strategies based on his assessment of the evidence, he cannot usurp the fundamental choices provided directly to a criminal defendant under the Constitution. As explained by the Court in McCoy , "these are not strategic choices about how best to achieve a client's objectives; they are choices about what the client's objectives in fact are." 138 S.Ct. at 1508.
Thus, based on the Supreme Court's ruling in McCoy , there is no question that a criminal defendant's decision whether to concede guilt implicates fundamental constitutional rights and the right to exercise that decision is protected under the Sixth Amendment. Moreover, a violation of this Sixth Amendment right is a structural error and not subject to harmless error review. As the Court explained in McCoy :
Because a client's autonomy, not counsel's competence, is in issue, we do not apply our ineffective-assistance-of-counsel jurisprudence to McCoy's claim. To gain redress for attorney error, a defendant ordinarily must show prejudice. Here, however, the violation of McCoy's protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy's sole prerogative.
Violation of a defendant's Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called "structural;" when present, such an error is not subject to harmless-error review. Structural error affects the framework within which the trial proceeds, as distinguished from a lapse or flaw that is simply an error in the trial process itself. An error may be ranked structural, we have explained, if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest, such as the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. An error might also count as structural when its effects are too hard to measure, as is true of the right to counsel of choice, or where the error will inevitably signal fundamental unfairness, as we have said of a judge's failure to tell the jury that it may not convict unless it finds the defendant's guilt beyond a reasonable doubt.
Under at least the first two rationales, counsel's admission of a client's guilt over the client's express objection is error structural in kind. Such an admission blocks the defendant's right to make the fundamental choices about his own defense. And the effects of the admission would be immeasurable, because a jury would almost certainly be swayed by a lawyer's concession of his client's guilt. McCoy must therefore be accorded a new trial without any need first to show prejudice.
138 S.Ct. at 1510-11 (internal quotations and citations removed).2 As in McCoy , we find Mr. Horn's counsel explicitly conceded guilt over his client's objections, thus violating Mr. Horn's Sixth Amendment rights. Given this violation, we have no choice but to vacate the conviction and sentence and remand this matter to the district court for a new trial.3
CONCLUSION
Given the express holding of the Supreme Court in McCoy , we find defendant's assignment of error asserting a Sixth Amendment violation has merit. A criminal defendant's express refusal to concede guilt is safeguarded by core constitutional protections. While conceding guilt in the hope of avoiding a death sentence may be a reasonable strategic decision in some cases, the decision to do so belongs to the defendant. Defense counsel's decision to concede Mr. Horn was guilty of second-degree murder or manslaughter over Mr. Horn's objections resulted in a structural error requiring this court to vacate defendant's conviction and sentence.
DECREE
DEFENDANT'S CONVICTION AND SENTENCE ARE VACATED; REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL.