Judgment rendered February 1, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,704-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
Versus
CLARDIS EDWARD GALLOWAY, JR. Appellant
Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 19-CR-29946
Honorable Amy Burford McCartney, Judge
LOUISIANA APELLATE PROJECT Counsel for Appellant By: Prentice L. White
CLARDIS EDWARD GALLOWAY, JR. Pro Se
CHARLES B. ADAMS Counsel for Appellee District Attorney
LEE R. HALL, JR. RHYS E. BURGESS Assistant District Attorneys
Before PITMAN, STEPHENS, and MARCOTTE, JJ. STEPHENS, J.
This criminal appeal arises out of the 42nd Judicial District Court,
Parish of DeSoto, State of Louisiana, the Honorable Amy Burford
McCartney, Judge, presiding. On September 22, 2021, defendant, Clardis
Edward Galloway, Jr., was convicted by a unanimous jury of one count of
second-degree murder, a violation of La. R.S. 14:30.1, and was sentenced to
life imprisonment by the trial court on October 14, 2021. Galloway has
appealed. Appellate counsel filed a motion to withdraw, together with a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.
Ed. 2d 493 (1967), alleging that there are no nonfrivolous issues on which to
base the appeal. This Court held the motion in abeyance and allowed the
defendant 30 days to file a pro se brief.
Thereafter, Galloway filed a pro se brief, urging two assignments of
error, one which contending that he was denied the effective assistance of
counsel when his attorney failed to consult with him prior to withdrawing
his plea of not guilty and not guilty by reason of insanity. Pursuant to an
order issued by this Court, appellate counsel filed a brief addressing this
issue, and the State filed a reply brief. For the reasons set forth below, we
affirm Galloway’s conviction and sentence.
FACTS/PROCEDURAL BACKGROUND
Rosemary Foley was an elderly, disabled woman who lived alone at
her home on Hwy. 191 in Logansport, Louisiana. Galloway and Aulden
Burford, Ms. Foley’s niece, lived with Ms. Foley for a while. A month
before her murder, Ms. Foley began having problems with the young couple
residing with her, so she asked them to leave. Galloway and Aulden broke up, and Aulden left Louisiana to go live with another relative. Galloway
moved in with a friend named Douglas Tyler Williams.
On October 11, 2018, Galloway left Williams’ house to go to Ms.
Foley’s home to help her with a plumbing problem. Galloway rode
Williams’ red Honda four-wheeler rather than walking because the two
residences were approximately two miles apart. Unbeknownst to Williams,
Galloway took with him to Ms. Foley’s a Ruger .380 pistol belonging to
Williams. Sometime later that morning, Marietta Sepulvado, Ms. Foley’s
home health physical therapist, tried to contact Ms. Foley about a missed
physical therapy session. Ms. Sepulvado reached out to Ms. Foley’s sister to
find out whether she had heard from Ms. Foley. Police officers then went to
Ms. Foley’s home to perform a welfare check.
Upon their entry into Ms. Foley’s home, officers found her lying on
the floor, unresponsive, with a gunshot wound to the head. Galloway’s
wallet, containing his driver’s license, and the red Honda four-wheeler were
just outside of Ms. Foley’s house. Williams, concerned that his four-
wheeler had not been returned, showed up at Ms. Foley’s residence, where
he found his ATV and police officers.
One of the officers asked Williams to use his cell phone to call
Galloway. Williams made the call, and Galloway, who answered, realized
that the police were at Ms. Foley’s home. Shortly thereafter, Galloway
drove up in Ms. Foley’s vehicle. Galloway was taken into custody. Officers
discovered Williams’ pistol lying in the grass a short distance away from the
victim’s car.
On January 22, 2019, a DeSoto Parish grand jury indicted Galloway
for the second-degree murder of Rosemary Foley, a violation of La. R.S. 2 14:30.1. Galloway entered a plea of not guilty at his arraignment. After
reviewing Galloway’s psychological history, defense counsel advised his
client to withdraw his not guilty plea and enter a plea of not guilty and not
guilty by reason of insanity, which he did. Galloway also filed a request for
the appointment of a sanity commission. Two mental health experts were
appointed to evaluate Galloway. After they had differing opinions, the trial
court appointed a third expert to examine Galloway. Court minutes from
January 14, 2021, indicate that Galloway was found to have the mental
capacity to proceed and assist in his defense, and the trial court filed the
sanity commission reports into the record under seal.
On August 12, 2021, at the free and voluntary hearing, with Galloway
present via Zoom, defense counsel withdrew Galloway’s plea of not guilty
and not guilty by reason of insanity and entered a plea of not guilty. Jury
selection began on September 17, 2021, with the last juror being seated the
morning of September 22, 2021, after which the matter proceeded to trial.
The jury rendered a unanimous verdict of guilty of second-degree murder
that same day, and on October 14, 2021, Galloway was sentenced to the
mandatory sentence of life imprisonment without benefit of probation,
parole, or suspension of sentence.
DISCUSSION
Assignment of Error No. 1
In his first pro se assignment of error, Galloway argues that because
the indictment charged him with both subsection (A)(1) of La. R.S. 14:30.1
(the defendant had the specific intent to kill or inflict great bodily harm on
the victim) and subsection (A)(2) (the defendant was engaged in the
perpetration or attempted perpetration of an armed robbery of the victim 3 even though he had no intent to kill or to inflict great bodily harm on the
victim), his conviction was “without unanimity of the jury.” According to
Galloway, there is nothing in the record to show that he received a
unanimous verdict of either one of these “two distinct acts” or if the jury was
“split” in its decision.
The State points out that the jury rendered a unanimous verdict
convicting Galloway of second-degree murder and in fact was polled to
confirm their unanimity. As to Galloway’s “alternate theory” argument, the
State points out that a jury is not constitutionally required to agree on a
single theory to convict a defendant when it is instructed as to alternate
theories.
After closing arguments, the judge instructed the jury on both theories
of second-degree murder and manslaughter. There was sufficient evidence
from which the jury could have found Galloway guilty under either theory,
including his theft of the murder weapon, his return to the crime scene in
Ms. Foley’s car, which he took after having shot her, and his confession that
he shot the victim in the back of the head as he was just about to rob her at
gunpoint. As held by the court in State v. Seals, 09-1089, p. 81 (La. App. 5
Cir. 12/29/11), 83 So. 3d 285, 346, writ denied, 12-293 (La. 10/26/12), 99
So. 3d 53, cert. denied, 569 U.S. 1031, 133 S. Ct. 2796, 186 L. Ed. 2d 863
(2013), a jury is not required to agree on a single theory to convict a
defendant when it is instructed as to alternate theories. See also, Schad v.
Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991); State v.
Vergo, 594 So. 2d 1360 (La. App. 2 Cir. 1992), writ denied, 598 So. 2d 373
(La. 1992); State v. Chester, 19-363, pp. 123-24 (La. App. 5 Cir. 2/3/21),
4 314 So. 3d 914, 997, writ denied, 21-00350 (La. 6/8/21), 317 So. 3d 321.
This assignment of error is without merit.
Assignment of Error No. 2
Galloway and appellate counsel have both argued that Galloway was
denied effective assistance of counsel when Galloway’s trial attorney
changed Galloway’s plea from not guilty and not guilty by reason of insanity
to not guilty without consulting him, thereby abandoning his “one and only
viable defense.” According to Galloway, his attorney was aware of his long
history of mental health issues and had requested an evaluation by a forensic
psychiatrist after one of the two appointed mental health professionals found
that he lacked the capacity to proceed to trial. Both Galloway and his
appellate counsel erroneously argue that this third mental health
professional’s report is not in the record (it is),1 and that the record does not
contain the results of the sanity commission. While there apparently was no
testimony, hence no transcript, there are minutes2 indicating that on January
14, 2021, all three doctors’ reports were entered into the record, and that the
sanity commission found Galloway competent to stand trial and assist in his
defense.
According to the State, there was no deficiency in Galloway’s trial
attorney’s performance as to the defendant’s plea; even so, a claim of
1 Galloway has also claimed that he was only examined by two members of the sanity commission, not three; according to him, he is unaware that a forensic psychiatrist was provided to the defense. Be that as it may, Galloway was evaluated by the third doctor on November 11, 2020, as evidenced by Dr. Sanderson’s report which, together with the other examiners’ reports, was filed into the record as a sealed exhibit. 2 Galloway and appellate counsel have also asserted that there is no transcript from the hearing at which trial counsel changed Galloway’s plea. There was no separate hearing for this, as it occurred at the pretrial conference/free and voluntary hearing held on August 12, 2021; the transcript can be found at R. pp. 617-23. 5 ineffective assistance of counsel is more appropriately raised in an
application for post-conviction relief in the trial court. See, State v. Hilliard,
52,652, p. 20 (La. App. 2 Cir. 8/14/19), 278 So. 3d 1065, 1080, writ denied,
19-01701 (La. 7/24/20), 299 So. 3d 68.
The Supreme Court set out the two-prong test for a defendant
claiming ineffective assistance of counsel in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d (1984): that counsel’s performance
was deficient; and the deficiency prejudiced his defense. State v. Hilliard,
52,652, pp. 19-20 (La. 8/14/19), 278 So. 3d 1065, 1079-80, writ denied, 19-
01701 (La. 7/24/20), 299 So. 3d 68. The State points out that Galloway’s
not guilty and not guilty by reason of insanity plea was withdrawn only after
a sanity commission, conducted pursuant to a motion by previous defense
counsel, was convened, and the evaluations resolved the issue of Galloway’s
competency to stand trial. The record shows that Galloway filed pro se
pleadings and had in-chambers colloquies with the trial judge, both before
and during trial, wherein he had rational conversations with the judge
discussing trial strategy and issues with his counsel. Galloway never raised
an issue with the plea entered by his trial attorney—had he disagreed with
the strategy of his trial counsel to change his plea (if in fact the defendant’s
allegation that his attorney did not discuss the change of plea with Galloway
is true, which the State calls “dubious”), Galloway could have raised the
issue in chambers or when his plea was read at the beginning of trial in open
court.
Both the Louisiana and federal constitutions guarantee a criminal
defendant’s right to the effective assistance of counsel. U. S. Constitution
art. VI; La. Constitution art. 1, § 13; Gideon v. Wainwright, 372 U.S. 335, 6 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); State v. Brooks, 94-2438 (La.
10/16/95), 661 So. 2d 1333; State v. Bayles, 53,696 (La. App. 2 Cir.
11/17/21), 329 So. 3d 1149; State v. Turner, 52,510 (La. App. 2 Cir.
4/10/19), 267 So. 3d 1202, writ denied, 19-00873 (La. 9/24/19), 279 So. 3d
386; State v. Mansfield, 50,426 (La. App. 2 Cir. 2/24/16), 190 So. 3d 322.
Under the standard for ineffective assistance of counsel set out in
Strickland v. Washington, supra, adopted by Louisiana’s Supreme Court in
State v. Washington, 491 So. 2d 1337 (La. 1986), a reviewing court must
reverse a conviction if the defendant establishes that counsel’s performance
fell below an objective standard of reasonableness under prevailing
professional norms, and counsel’s inadequate performance prejudiced the
defendant to the extent that the trial was rendered unfair and the verdict
suspect. State v. Ball, 19-01674 (La. 11/24/20), 305 So. 3d 90; State v.
McGee, 18-1052 (La. 2/25/19), 264 So. 3d 445; State v. Bayles, supra; State
v. Turner, supra.
Claims of ineffective assistance of counsel are more properly raised in
an application for post-conviction relief in the trial court because this
provides the opportunity for a full evidentiary hearing under La. C. Cr. P.
art. 930. State v. McGee, supra; State v. Ward, 53,969, p. 17 (La. App. 2
Cir. 6/30/21), 324 So. 3d 231, 240. When the record is sufficient, however,
allegations of ineffective assistance of trial counsel may be resolved on
direct appeal in the interest of judicial economy. Id.; State v. Frost, 53,312
(La. App. 2 Cir. 3/4/20), 293 So. 3d 708, writ denied, 20-00628 (La.
11/18/20), 304 So. 3d 416.
Defense counsel’s choice between a plea of not guilty instead of not
guilty and not guilty by reason of insanity, as well as the decision to call 7 certain witnesses or present certain evidence at trial, relates to strategy
decisions3 and “could not possibly be reviewed on appeal.” State v. Martin,
607 So. 2d 775, 788 (La. App. 1 Cir. 1992). Decisions relating to
investigation, preparation, and strategy require an evidentiary hearing. State
v. Wise, 13-247, p. 14 (La. App. 5 Cir. 11/19/13), 128 So. 3d 1220, 1230,
writ denied, 14-0253 (La. 9/12/13), 147 So. 3d 703; State v. Martin, supra.
Only in an evidentiary hearing in the trial court, where the defendant can
present evidence beyond that contained in an inadequate record, can his
allegations be sufficiently investigated. See, La. C. Cr. P. art. 924, et seq.
An alleged error that is within the ambit of trial strategy does not establish
ineffective assistance of counsel because opinions may differ on the
advisability of such a tactic. State v. Wise, supra; State v. Singleton, 05-634
(La. App. 5 Cir. 2/14/06), 923 So. 2d 803, 811, writs denied, 05-634 (La.
2/14/06), 923 So. 2d 803, 06-1208 (La. 11/17/06), 942 So. 2d 532.
La. C. Cr. P. art. 651 provides that when a defendant enters a plea of
“not guilty,” evidence of insanity or mental defect at the time of the offense
shall not be admissible. Louisiana does not recognize the defense of
diminished capacity. State v. Dressner, 18-0828, p. 14 (La. 10/29/18), 255
So. 3d 537, 548, cert. denied, ___ U.S. ___, 139 S. Ct. 2691, 204 L. Ed. 2d
1093 (2019). A mental defect or disorder short of insanity cannot serve to
negate specific intent and reduce the degree of the crime. State v. Lecompte,
3 It is possible that trial counsel changed the defendant’s plea after two of the three sanity commission physicians concluded that Galloway was legally sane. As noted by the First Circuit in State v. Folse, 623 So. 2d 59, 71 (La. App. 1 Cir. 1993), 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, rest with an accused and his attorney, and the fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. 8 371 So. 2d 239, 243 (La. 1978); see also, La. R.S. 14:14, La. C. Cr. P. art
561.
Because of the change in Galloway’s plea from not guilty and not
guilty by reason of insanity to not guilty, expert (or lay) testimony regarding
his psychological background regarding his state of mind at the time of Ms.
Foley’s murder was not admissible. Although it is improbable, given that
the evidence of Galloway’s culpability in this case is overwhelming,4 instead
of finding him guilty of second-degree murder, the jury may have
considered this evidence to find him guilty of manslaughter which, under La.
R.S. 14:31(A)(1), is a homicide that would be murder but is committed in
the sudden passion or heat of blood immediately caused by provocation
sufficient to deprive an average person of his self-control and cool
reflection. State v. Bourque, 93-594 (La. App. 3 Cir. 2/16/94), 636 So. 2d
254, writ denied, 94-1839 (La. 1/6/95), 648 So. 2d 920. We emphasize,
however, as did the Third Circuit in State v. Bourque, that the measure of the
adequacy of the provocation to cause a defendant to act in “sudden passion
or heat of blood” is the average or ordinary person and not the peculiar
psychological characteristics of a particular defendant. Id. at 268.
In the instant case, the sanity hearing was not transcribed. Instead of
testimony, the reports of the three examining mental health professionals
were entered into the record (as is done in many such cases), and Galloway
was found competent to stand trial. Galloway was not in attendance at this
hearing on January 14, 2021, but his attorney was. COVID protocols were
4 See, e.g., State v. Morton, 483 So. 2d 174, 181 (La. App. 2 Cir. 1986), wherein, in response to the defendant’s complaint about the trial court’s refusal to allow testimony as to his state of mind or mental condition, this Court noted that the defendant’s recorded statement, attempted flight from the scene, and testimony at trial “completely belie[d] any substantive insanity or intoxication defense.” 9 still in force across the United States at that time, so this is not unusual.
While Galloway’s claim that his trial counsel did not consult with him prior
to changing his plea at the pre-trial conference/free and voluntary hearing on
August 12, 2021, is concerning, it is neither supported nor refuted by the
record in this case. As noted previously, Galloway was present, albeit via
Zoom, at the hearing at which his plea was changed. The record does not
contain either Galloway’s consent or objection to counsel’s plea change, nor
does it include a declaration by trial counsel that she consulted Galloway
prior to changing the plea.
This record does not allow us to definitively resolve Galloway’s
ineffective assistance of counsel claim. However, this case does not present
extraordinary circumstances supporting a remand to the trial court at this
juncture.5
5 As this Court noted in State v. Mansfield, 50,426, p. 8 (La. App. 2 Cir. 2/24/16), 190 So. 3d 322, 328, “[I]n extraordinary circumstances, appellate courts have taken a third approach on appeal and remanded an ineffective assistance claim for an evidentiary hearing.”
In State v. Bayles, 53,696 (La. App. 2 Cir. 11/17/21), 329 So. 3d 1149, the defendant’s ineffective assistance of counsel claim was, inter alia, a conflict of interest arising from an agreement between the district attorney’s office and the public defender’s office for the district attorney’s office to fund the public defender’s office. This Court, finding there were extraordinary circumstances, remanded the matter to the trial court, and observed: This defendant has suffered through inordinate delays, none of which were his fault, in this case. He has had four court-appointed attorneys, and more than once during this debacle, defendant was unrepresented and unable to consult with an attorney at all. Defendant felt so unheard that he reached out not once but twice to the DeSoto Parish Clerk of Court to express not only his concerns about conflict of interest issues, but regarding pending motions and delays in his case that were not attributable to him[.] [I]t does not appear on this record that [defendant’s counsel] even questioned the possibility of raising such a conflict on behalf of his client the second time he was appointed to represent defendant. What concerns this Court the most, however, is the fact that, despite the trial court’s reassurances to defendant to the contrary, it appears, on this record, that none of defendant’s attorneys investigated the allegations he made against the District Attorney which, if meritorious and proven by defendant, after a contradictory hearing held triggered by a motion to recuse filed by defense counsel, would have mandated the District Attorney’s recusal prior to trial. 10 State v. Bayles, 53,696, pp. 25-26 (La. App. 2 Cir. 11/17/21), 329 So. 3d 1149, 1162.
In State v. Mansfield, supra, the defendant complained that his trial attorney’s failure to object to the prosecutor’s repeated reference to defendant’s post-Miranda silence (a Doyle violation) constituted ineffective assistance of counsel. The Second Circuit found the evidence in the appellate record “sufficiently compelling to conclude that the interest of justice and judicial economy” would be best served by a remand for an evidentiary hearing at that time, rather than post-conviction, because of the length of the proceedings (the offense occurred in 2010, the defendant was incarcerated approximately 34 months before his trial in September 2013, an out-of-time appeal was not granted until May 2015, and his appeal was not heard by the appellate court until early 2016) and indications of other possible acts of ineffective assistance found in the record. State v. Mansfield, 50,426, pp. 19-20 (La. App. 2 Cir. 2/24/16), 190 So. 3d 322, 333.
In State v. Taylor, 44,367, p. 9 (La. App. 2 Cir. 9/23/09), 20 So. 3d 1157, 1162, this Court remanded an effective assistance of counsel claim to the trial court, observing: The record reflects multiple statements from the trial judge evidencing his serious concerns about the effectiveness of Defendant’s trial counsel. These statements require inquiry into whether Defendant was constructively deprived of effective assistance of counsel at one or more of the critical stages of his proceedings. Whether there was such a deprivation impacts our review of each of Defendant’s assignments of error. We conclude, therefore, that the trial court erred in summarily denying Defendant’s motion for new trial based on ineffective assistance of counsel. In this case, the record alone is inadequate to fairly resolve this issue, and, accordingly, we remand the matter for a contradictory hearing.
In State v. Howard, 09-928 (La. App. 5 Cir. 5/25/10), 37 So. 3d 1099, aff’d as amended, 10-869 (La. App. 5 Cir. 5/24/11), 66 So. 3d 1160, writ denied, 11-1468 (La. 4/9/12), 85 So. 3d 135, because the Fifth Circuit was already remanding the matter to the trial court for resolution of several other issues, the Court, having found the record sufficient to address some, but not all, of the defendant’s ineffective assistance of counsel claims, included in its disposition a remand for a contradictory hearing on the claims of ineffective assistance claims to allow him to develop an adequate record.
In State v. Lee, 00-0183 (La. App. 1 Cir. 2/16/01), 788 So. 2d 452, writ denied, 00-1611 (La. 3/30/01), 788 So. 2d 442, the defendant, convicted of second-degree murder and sentenced to life imprisonment, alleged that his trial counsel was ineffective because of a conflict of interest between his representation of the defendant at trial and his previous representation of a witness who testified against the defendant at his trial. In fact, as noted by Justice Weimer (then a judge on the First Circuit) in his concurrence, “[t]he defendant’s former attorney, with whom he had a relationship of confidentiality, subsequently represented his accuser. At trial, the defendant’s attorney [was] his accuser’s former attorney.” State v. Lee, 00-0183, p. 1 (La. App. 1 Cir. 2/16/01), 788 So. 2d 452, 458, writ denied, 00-1611 (La. 3/30/01), 788 So. 2d 442. The fact that the defendant and the witness would present antagonistic defenses was recognized on the record by both defense counsel and the State after the preliminary hearing, and a joint request for severance of the trials was granted. The First Circuit observed that without an evidentiary hearing, however, there is no way to evaluate the propriety of counsel’s failure to raise the issue of a potential conflict, of which the attorney was clearly aware, with his client prior to trial. Because it could not be determined whether such a conflict was waived, the Court remanded the matter to the trial court for a full evidentiary hearing at that time. State v. Lee, 00-0183, pp. 7-8 (La. App. 1 Cir. 2/16/01), 788 So. 2d 452, 456-57, writ denied, 00-1611 (La. 3/30/11), 788 So. 2d 442. 11 The case cited by appellate counsel, State v. Starks, 20-429 (La. Ap. 5
Cir. 11/3/21), 320 So. 3d 1192, is factually inapposite. In State v. Starks, the
defendant went to trial having changed his plea from not guilty to not guilty
and not guilty by reason of insanity. Despite this plea, however, the
defendant’s attorney did not present any evidence regarding defendant’s
mental condition or sanity. On appeal, the defendant urged that his attorney
provided ineffective assistance of counsel. According to the defendant, by
changing his plea to not guilty and not guilty by reason of insanity, his trial
attorney “took on a burden of proof to establish by a preponderance of the
evidence that defendant was not sane at the time of the offense, but counsel
failed to act or have a strategy.” Defendant claimed that his attorney didn’t
ask him any questions about his mental condition when he was on the stand,
and pointed out that such questions could have been based on Dr. Salcedo’s
examination of the defendant and reports (Dr. Salcedo was one of two
mental health professionals who served on a sanity commission which found
the defendant sane at the time of the offense and capable of standing trial).
Trial counsel further failed to say anything about the defendant’s sanity
during closing arguments, but “simply let the judge read the instructions on
his burden of proof on sanity and allowed the State to comment on
defendant’s sanity.” The defendant urged that this plea should have been
abandoned if his attorney had no intention of supporting it, and counsel’s
silence throughout the trial constitutes a deficient performance. State v.
Starks, 20-429, pp. 7-8 (La. App. 5 Cir. 11/3/21), 330 So. 3d 1192, 1198.
The Fifth Circuit pointed out in State v. Starks, that it was not clear
from the record whether counsel was ineffective in failing to formally
abandon the defense of insanity by withdrawing the defendant’s plea 12 because the record did not contain the transcripts of the sanity commission
hearings from which the Court could ascertain the possible expert witness
testimony available to the defendant. The Court cited State ex rel. Busby v.
Butler, 538 So. 2d 164, 168 (La. 1988), wherein the Louisiana Supreme
Court declined to address a claim of ineffective assistance of counsel in
similar circumstances when it found that it was “clear from the record such a
defense would not have succeeded,” the supreme court having been
persuaded by expert testimony presented at a prior evidentiary hearing
which “showed even the most favorable interpretation of his psychiatric
records would not have shown him insane under Louisiana law.” Thus, the
Fifth Circuit found that, “from the record before us, a complete
understanding of the abandonment of the insanity defense cannot be gained
for a determination of whether ineffective assistance of counsel occurred.
With this insufficiency in the present record, we find this matter more
properly lends itself to the presentation of evidence at a post-conviction
hearing.” State v. Starks, 20-429, pp. 10-11 (La. App. 5 Cir. 11/3/21), 330
So. 3d 1192, 1200.
The problem in the instant case is not missing transcripts; the record
in fact contains the sanity commission reports from all three mental health
professionals who examined the defendant. The issue instead is, as noted
above, whether defense counsel consulted with the defendant prior to the
plea change. Because the record contains nothing that would allow this
Court to determine the merits of Galloway’s ineffective assistance of
counsel claim at this juncture, he may re-urge this claim in future post-
conviction proceedings, in accordance with all procedural requirements.
See, La. C. Cr. P. art. 924, et seq.; State v. McGee, p. 3 (La. 2/25/19), 264 13 So. 3d 445, 447; State v. Morrison, 45,620, p. 21 (La. App. 2 Cir. 11/24/10),
55 So. 3d 856, 869.
CONCLUSION
For the above-stated reasons, defendant’s conviction and sentence are
AFFIRMED.