DO NOT PUBLISH STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-887
STATE OF LOUISIANA
VERSUS
GREGORY DWAYNE HARRELL
************
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 302,365 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and J. David Painter, Judges.
CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Gregory D. Harrell Richwood Correctional Center Unit 4 180 Pine Bayou Circle Monroe, LA 71202 COUNSEL FOR DEFENDANT/APPELLANT: Pro se
Edward K. Bauman P.O. Box 1641 Lake Charles, LA 70602 COUNSEL FOR DEFENDANT/APPELLANT: Gregory Dwayne Harrell James C. Downs Brian D. Cespiva P.O. Box 1472 Alexandria, LA 71309 COUNSEL FOR APPELLEE: State of Louisiana PAINTER, Judge
Defendant, Gregory Dwayne Harrell, appeals his conviction on two
counts of simple burglary of a motor vehicle and his conviction on a habitual
offender bill as a fourth felony offender. For the following reasons, we
affirm the conviction, vacate the twenty year enhanced sentence, and remand
for resentencing.
FACTS
In March 2010, John Muder lived on Navaho Trail in Alexandria,
where he worked as a teacher and a coach. The subdivision he lived in,
Cherokee Village, was large and mostly consisted of two streets, Navaho
and Cherokee Lane. Mr. Muder testified as follows about the events of
March 25, 2010:
Well, it was about ten o‟clock at night and . . . my wife made me take the trash out. So I went outside and I put the trash in the trash can and about that time I heard like a metallic noise, like a chink, you know, . . . and I looked and it was a bicycle riding up a driveway across the street from me. And the house is directly across the street from mine, some older people live there. The man was about I think eighty-seven or eighty-eight . . . . He was bedridden at the time and his wife was also around the same age, . . . and so it was pretty much just her by herself there and I knew she wasn‟t riding a bike in the middle of the night . . . . So I went over across the street and there was nobody back there, all there was [] a bike laying down. And so I said, hey, you know, who is back here, said it twice, and then the defendant came walking out from behind the shed they had in their backyard. And I said, hey, man, what you doing back here. And he said, I‟m just taking care of something.
Mr. Muder‟s conversation with Defendant was face-to-face and
occurred in the light cast by the carport fixture and the street lamps. When
Defendant refused to be more specific about his activities, and when Mr.
Muder retrieved his phone from his pocket, Defendant mounted his bike and
rode away. He passed within two feet of Mr. Muder. Defendant dropped a
1 purse, some cards, some checkbooks, and some other things at the end of the
driveway. Mr. Muder also noticed that Defendant was carrying two or three
women‟s wallets. It seemed to Mr. Muder that Defendant panicked and fled.
By the time the 911 operator answered, Defendant had been gone ten
seconds.
Mr. Muder recalled that Defendant was wearing all black: a black
skull cap, oversized headphones, a big fluffy black jacket, and some light
colored gloves. Mr. Muder thought Defendant‟s attire was odd because it
was not cool enough for the jacket and gloves. Mr. Muder himself was
wearing shorts and a tee shirt. Mr. Muder went behind the shed and
discovered identification, including social security cards, credit cards, and
library cards.
In compliance with the instructions given to him by law enforcement,
Mr. Muder waited in the driveway for an officer to arrive. As he waited, he
called Rob Antoon, who was a co-member of the neighborhood watch,
which had been formed because of frequent break-ins in the neighborhood.
Corporal Todd Beaman, a patrolman with the Alexandria City Police,
arrived five to seven minutes after Mr. Muder called to report the incident.
Mr. Muder then gave Officer Beaman a description of the person he had
seen, pointed out the items left behind by the man, and assured the officer
that he had touched nothing. Mr. Muder also described the bike, stating that
the only thing that stood out about it was the bullhorn shaped handlebars.
Mr. Muder stated that, once the officer told him the purse belonged to
Kristy Flynn, who also lived in the subdivision, he called Antoon again and
gave him the information. Mr. Antoon called John Flynn, Mrs. Flynn‟s
husband, and he met them in the driveway where the encounter occurred. 2 At the time of trial, Mrs. Flynn and her husband had lived on
Cherokee Lane in Alexandria for about a year and a half and in the Cherokee
Village Subdivision for eleven years. On March 25, 2010, Mrs. Flynn
arrived home from the grocery store around 8:30 or 9:00 p.m. She parked
her vehicle under the carport and brought her groceries inside. She left her
purse and some of her bags in the car. Her purse, which contained her wallet,
was on the front passenger-side seat.
Mrs. Flynn testified that she returned outside to retrieve the rest of her
bags after three to five minutes and discovered that her purse was missing.
Mrs. Flynn did not know Defendant, and she did not give him permission to
go into her car or to take her purse. When Mrs. Flynn called her husband to
tell him, she discovered that he already knew. He had been notified by Mr.
Antoon that Mr. Muder had found her purse. Between an hour and an hour
and a half later, an officer stopped by to return her purse; all of Mrs. Flynn‟s
belongings were returned with the bag. Mrs. Flynn paid approximately
ninety dollars altogether for her purse and wallet.
On cross-examination, Mrs. Flynn stated that there was no damage to
her vehicle, which had been left unlocked. She did not see the burglary take
place.
Corporal Todd Beaman, a patrolman with the Alexandria City Police,
testified that he responded to Mr. Muder‟s call. After collecting evidence
from Mr. Muder, he received a report that Megan Haworth‟s vehicle had
been burglarized. The Haworth burglary took place on Plantation Drive,
which was located between Mrs. Flynn‟s home and the place where officers
stopped Defendant. Both Ms. Haworth‟s neighborhood and Mr. Flynn‟s
street were connected to Prescott St. 3 Ms. Haworth lived on Plantation Drive in Alexandria, which was part
of the Plantation Acres Subdivision. It was next to the Cherokee Village
Subdivision. Ms. Haworth shared her home with her boyfriend and two sons.
On the afternoon of March 25, 2010, Ms. Haworth arrived home around 4:00
or 5:00 p.m. and parked her automobile in her driveway under the carport.
Ms. Haworth left her purse in her car. She went to retrieve it around 11:00
p.m. Ms. Haworth did not see her purse, so she went inside to ask her
boyfriend if he had moved it. He had, but he had then returned it to the
vehicle. When she and her boyfriend went outside to continue the search,
they noticed that one of the car doors had not been closed all the way. Ms.
Haworth reached for the door, but her boyfriend stopped her; he said
someone had opened the door. Her car was unlocked, and her boyfriend
indicated where he had left her purse.
Ms. Haworth said that her parents left her house around 9:00 p.m., so
the purse must have been taken between that time and 11:00 p.m., when she
went to retrieve the item. The vehicle door was not open when she walked
her parents to their car. Ms. Haworth‟s boyfriend failed to re-lock her car
when he returned her bag to it earlier in the evening. Ms. Haworth had given
no one other than her boyfriend permission to enter her car that evening. Ms.
Haworth did not know Defendant and did not give him permission to enter
her automobile or to take anything from her car.
Ms. Haworth recalled that her purse contained multiple items,
including a pink Samsung camera that had been a present from her
boyfriend. Other than the camera, Ms. Haworth had about eighty dollars in
cash in her purse. The value of everything taken amounted to approximately
$220.00. 4 Patrolman Andre Williams apprehended Defendant on England Drive.
An officer called Mr. Muder a couple of hours after the incident, told him
that they had apprehended Defendant, and asked Mr. Muder to identify him
at the scene where they stopped Defendant. Mr. Muder noticed that
Defendant was still wearing the same clothes as before. Mr. Muder
positively identified Defendant as the man from the encounter and had no
doubt about the identification. The bicycle with the unusual handlebars that
Defendant was riding at the time of his arrest was the same bike that Mr.
Muder saw Defendant with during their encounter. Defendant was found to
have with him a pink Samsung camera which was later identified as
belonging to Ms. Haworth, as well as headphones and gloves.
At trial, Mr. Mr. Muder pointed to Defendant and, again, identified
him as the man he met in his neighbor‟s yard and as the man whom he
identified for the police.
DISCUSSION
Error Patent Review
As required by La.Code Crim.P. art. 920, the court reviews all appeals
for errors patent on the face of the record. After reviewing the record, we
find two errors patent, and the court minutes of the habitual offender
sentencing require correction.
The court originally sentenced Defendant to ten years for his two
convictions of simple burglary. When questioned by the prosecutor for
clarification, the following exchange occurred:
BY MR. GIORDANO:
Your Honor, we have no objection to him – this time running concurrent with any other time he‟s serving. And just for clarification[,] I note we 5 gave him – the Court sentenced to ten years to the Department of Corrections. Is that on each count or - -
BY THE COURT:
No, I‟ll do them together.
Okay. Ten and ten concurrent? BY THE COURT:
Yes. Ten and ten concurrent on the two counts.
Later, in restating the sentence for the court staff, the judge stated, “he
is sentenced to the Department of Corrections for a period of ten years. Two
charges will run concurrent.”
The State filed a habitual offender bill which listed Defendant‟s two
recent convictions for simple burglary as well as Defendant‟s prior
convictions. At the conclusion of the bill, the State requested that Defendant
be “sentenced as a fourth felony offender in accordance with the provisions
of LSA-R.S. 15:529.1A(1)(b) and sentenced to a term of imprisonment of not
less than twenty (20) years and not more than life.”
At the close of the habitual offender proceeding, the prosecutor asked
that the “previous sentence in this docket number be vacated and a new
sentence imposed as him being declared as a – him being Mr. Harrell
declared as a fourth time felony offender.” The court, in finding Defendant a
fourth offender, stated: “[a]s a result of that I am going to vacate his
previous sentence that was imposed and [impose] a new sentence under that
habitual offender law.” The judge later vacated the previous sentence and
sentenced Defendant to twenty-five years in the Department of Corrections.
At a subsequent point in the proceeding, the court reduced the sentence to 6 twenty years. The following exchange further indicates that a single habitual
offender sentence was imposed:
And it will run concurrent. Or just - what do y‟all - -
It‟s my understanding, Your Honor, that it should just be one habitual offender conviction.
The court‟s Written Reasons on Habitual Offender Bill again
confirmed that a single twenty-year sentence was imposed for Defendant‟s
fourth felony offender status.
The trial court erred in failing to specify which of Defendant‟s two
sentences it intended to enhance, or whether it intended to enhance both. In
State v. Webster, 95-605, p. 9 (La.App. 3 Cir. 11/2/95), 664 So.2d 624, 630,
a case in which the defendant was convicted of four counts of armed
robbery, this court addressed a raised sentencing issue similar to the one in
the present case, finding that:
the trial court erred in that the record does not reveal which of defendant‟s four armed robbery convictions was being enhanced. Additionally, the trial court should have imposed a separate sentence on each of the three remaining convictions. Therefore, defendant‟s sentence is indeterminate as he was convicted of four counts of armed robbery and only a single sentence was imposed. See State v. Bessonette, 574 So.2d 1305 (La.App. 3 Cir.1991); La.Code Crim.P. art. 879. Accordingly, defendant‟s sentence will be vacated and the case remanded to the trial court for clarification as to which count is being enhanced and for imposition of separate sentences on the remaining three counts. See State v. Parker, 593 So.2d 414 (La.App. 1 Cir.1991).
Additionally, it is unclear whether the court vacated only one or both
of Defendant‟s original ten-year sentences. Accordingly, Defendant‟s
habitual offender sentence of twenty years is vacated and the case remanded 7 for resentencing with the trial court being instructed to specify which of
Defendant‟s two sentences is enhanced or whether both sentences are
enhanced. The trial court should likewise specify which original sentence or
sentences were vacated.
Sufficiency of the Evidence
Defendant asserts that: “The trial court erred in finding Gregory
Harrell guilty of two counts of simple burglary of a motor vehicle.” The
defense contends that the State failed to prove that Defendant entered the
cars because Mrs. Flynn only testified that her purse was removed from her
car.
The defense posits that the prosecution also failed to prove its case in
reference to Ms. Haworth. Ms. Haworth‟s camera was in her purse, which
was left in her car, and the camera was found in Defendant‟s possession.
However, the purse was never recovered. Additionally, the witness who
notified the police did not see Defendant in any of the vehicles. The witness
only saw Defendant with the items removed from the automobiles.
Defendant argues, therefore, that his convictions and sentences should be
reversed.
In his pro se appellant‟s brief, Defendant also “contends that the
evidence adduced at trial failed to prove beyond a reasonable doubt the
requisite elements of simple burglary.” Like his appellate attorney,
Defendant argues that this assertion has merit because the State failed to call
any witness who had seen Defendant entering or exiting one of the
burglarized vehicles. Further, the prosecution failed to present any
paperwork or photographic proof verifying Ms. Haworth‟s testimony that
the camera recovered from Defendant‟s possession belonged to her. 8 Defendant further complains that neither Mrs. Flynn, Ms. Haworth, nor Mr.
Muder testified as eyewitnesses. None of the witnesses saw Defendant enter
or exit the automobiles; therefore, they did not see Defendant either
complete or attempt to complete the act of simple burglary. Defendant urges
that a more appropriate conviction would have been for possessing stolen
goods. Based on these contentions, Defendant asks this court to overturn his
convictions.
The Louisiana Supreme Court has discussed the standard of review
for evaluating the sufficiency of the evidence on appeal:
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.
State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86
(citations omitted).
“Simple burglary is the unauthorized entering of any . . . vehicle, . . .
with the intent to commit a felony or any theft therein, other than as set forth
in R.S. 14:60.” La.R.S. 14:62(A). “Theft is the . . . taking of anything of
value which belongs to another, . . . without the consent of the other to the . .
. taking, . . . . An intent to deprive the other permanently of whatever may be
the subject of the . . . taking is essential.” La.R.S. 14:67(A).
The evidence presented at trial shows that Mrs. Flynn and Ms.
Haworth‟s vehicles were entered into without their permission on March 25, 9 2010. The person who entered their vehicles without permission took some
of their belongings without their permission. The belongings consisted of
items of value, which included purses, money, and a digital camera.
Defendant was seen in the neighborhood around the time of the burglaries
and found to be in possession of the items taken during the burglaries within
a short time frame after the burglaries were discovered.
In factually similar cases, the courts of this state have found that
where a suspect is found in possession of stolen goods, it is sufficient to
sustain a simple burglary conviction. State v. Tassin 08-367 (La.App. 3 Cir.
11/5/08), 997 So.2d 750; State v. Jacobs, 558 So.2d 1220 (La.App. 1 Cir.),
writ denied, 564 So.2d 319 (La.1990).
When the evidence presented at the trial herein is viewed in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of both simple burglary charges proven beyond a
reasonable doubt.
Sanity Commission
In his first counsel-filed assignment of error, Defendant claims that
“[t]he trial court erred in denying defense counsel‟s request for appointment
of a Sanity Commission.” In his third pro se assignment of error, Defendant
claims that “the Judge abused her discretion for not granting Petitioner[„]s
request for sanity commission examination . . . Therefore Petitioner contends
after the Judge[„]s verdict at sentencing the trial Judge „ordered‟ that the
Petitioner be evaluated.” In his fourth pro se assignment of error, Defendant
contends that he “was examined by the Federal Government doctors Social
Security Administrative doctor in between Jan, 2010 and March, 2010 and
was determined disabled mentally, which could have lead [sic] to such 10 outburst and actions at trial.” Defendant avers that the trial court‟s denial of
the sanity commission constituted an abuse of discretion and that, as a result,
this court should vacate Defendant‟s convictions and sentences, remand the
matter to the trial court, and order the trial court to have him examined by a
sanity commission.
“A criminal defendant has a constitutional right not to be tried while legally incompetent.” State v. Carmouche, 01-0405, p. 29 (La.05/14/02), 872 So.2d 1020, 1041. There is a legal presumption that the defendant is sane and competent to proceed. State v. Carmouche, 01-0405 at 30, 872 So.2d at 1041. The legal presumption that the defendant is sane and responsible for his actions may be destroyed by rebutting evidence. LSA-R.S. 15:432. See also, State v. Carmouche, 01- 0405 at 30, 872 So.2d at 1041, n. 9.
The appointment of a sanity commission is not a perfunctory matter, a ministerial duty of a trial court, or a matter of right. State v. Carmouche, 01-0405 at 30, 872 So.2d at 1041-42. The mental incapacity of the defendant to proceed may be raised at any time by the defense, the district attorney, or the court. LSA-C.Cr.P. art. 642; State v. Williams, 03-942, p. 6 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, 1008, writ denied, 04-450 (La.6/25/04), 876 So.2d 832. Any question regarding a defendant‟s mental capacity must be deemed by the court to be bona fide and in good faith before the court considers if there are reasonable grounds to doubt capacity. State ex rel. Seals v. State, 00-2738, p. 6 (La.10/25/02), 831 So.2d 828, 833.
The trial court has discretion in deciding whether to order a sanity commission to inquire into the defendant‟s present mental capacity to proceed. State v. Fish, 99-1280, p. 4 (La.App. 5 Cir. 4/12/00), 759 So.2d 937, 939. A defendant‟s mental capacity to proceed is determined by the procedure set forth in LSA-C.Cr.P. art. 647, which states:
The issue of the defendant‟s mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defendant‟s mental capacity to
11 proceed may be introduced at the hearing by the defense and by the district attorney.
A trial court‟s determination on a defendant‟s mental capacity to proceed is entitled to great weight on appellate review, and will not be overturned absent an abuse of that discretion. State v. Fish, 99-1280 at 4, 759 So.2d at 939.
State v. Robinson, 09-371, pp. 6-7 (La.App. 5 Cir. . 3/23/10), 39 So.3d 692,
696-97.
Defense counsel filed a motion for appointment of a sanity
commission on November 16, 2010. In it, he alleged that there was good
reason to believe that Defendant suffered from a mental disease or defect
that materially limited his mental capacity to understand the proceedings
against him or to assist in his defense. Further, defense counsel alleged that
Defendant‟s mental condition rendered him unable to distinguish right from
wrong and that he was insane at the time of the offense. Defense counsel
asserted that his belief was based on Defendant‟s adversarial relationship
with his prior attorney, visits with Defendant, his belief that Defendant did
not understand the charges, Defendant‟s outburst in court on November 15,
2010, and Defendant‟s belief that everyone was trying to “railroad” him.
On the date the motion was filed, defense counsel informed the trial
court that, after discussions with Defendant and his family, he learned that
Defendant had been under the care of a psychiatrist for paranoid
schizophrenia in his “younger years.” Defense counsel additionally stated
that Defendant had received some psychological treatment, “has been on”
medication, and received social security disability benefits as a result of his
condition. Defense counsel further informed the trial court that Defendant‟s
relationship with his previous attorney had been fraught with problems,
noted that Defendant had an outburst in court the previous day, stated that he 12 was not convinced that Defendant fully understood or appreciated what he
was charged with and the sentence he could receive, and questioned
Defendant‟s ability to assist in his defense. The State opposed the motion,
pointing out that Defendant had assisted counsel during jury selection and
that there had been no medical evidence introduced regarding any type of
insanity. After hearing the argument of counsel, the trial court noted that a
diagnosis of mental illness would not necessarily be an impediment to his
ability to assist counsel. The trial court then denied the motion.
On December 17, 2010, Defendant informed the trial court that he
wished to represent himself. During that discussion, defense counsel re-
urged his motion to appoint a sanity commission. At that time, the trial court
asked Defendant if he suffered from a mental illness. Defendant stated that
he was mentally ill from being in jail but that he was not under a doctor‟s
care. He stated that he had taken medication for depression and suicide
attempts but that he had discontinued the medication on his own.
Defendant asserts that the trial court‟s abuse of discretion is evidenced
by Defendant‟s allegations that he had been the victim of racism and threats
and also by Defendant‟s belief that his trial attorney was involved in a plot
to convict him. Defendant contends that there were additional indicators in
the record that a sanity commission should have been granted, including that
he had been hospitalized for depression and suicide attempts, that his
ramblings in court indicated that he did not understand the consequences of
the proceedings, and related matters.
Defendant further argues that this claim is supported by the trial
court‟s own actions after sentencing. Defendant alleges that, following
13 imposition of sentence, the trial court ordered him to be evaluated.
Defendant claims that the evaluation was never performed.
The fifth circuit noted, in State v. Williams, 02-1016 (La.App. 5 Cir.
2/25/03), 841 So.2d 936, writ denied, 03-2205 (La. 8/20/04), 882 So.2d 571,
that defense counsel failed to introduce evidence in support of his allegations
regarding the need for a sanity commission, did not subpoena or call
witnesses to testify regarding the defendant‟s alleged incompetency, and
failed to introduce medical records to support his contentions. The fifth
circuit found that the trial court did not err in denying the motion to appoint
sanity commission under those circumstances. See also State v. Normand,
04-840 (La.App. 3 Cir. 12/15/04), 896 So.2d 98, writ denied, 05-231 (La.
5/6/05), 901 So.2d 1094.
In its decision in Williams, 841 So.2d 936, the fifth circuit cited State
v. Wilkerson, 403 So.2d 652 (La.1981). In Wilkerson, the supreme court
stated the following regarding mental incapacity to proceed: “[w]here the
issue is presented by bare allegations without supporting evidence, the
exercise of discretion conferred on the trial judge will not be disturbed.” Id.
at 658 (citations omitted).
When the hearing on the written motion to appoint a sanity
commission was held in the case at bar, defense counsel presented no
witnesses or medical records to support his claim that Defendant suffered
from a mental disease or defect which materially limited his mental capacity
to understand the proceedings against him or to assist in his defense. It was
merely alleged that Defendant suffered from schizophrenia. When the issue
was re-urged, the trial court questioned Defendant regarding his capacity.
No other witnesses were called to support the motion, and no medical 14 records were submitted to support Defendant‟s claims that he had taken
medication for depression and suicide attempts and had been hospitalized.
Thus, we cannot say the trial court abused its discretion in failing to appoint
a sanity commission.
At the original sentencing hearing, the trial court sentenced Defendant
and stated that it would ask the department to address any mental or
substance abuse concerns. After Defendant was sentenced as a habitual
offender, the trial court recommended that Defendant “get some mental
health treatment.” The trial court subsequently sentenced Defendant to
twenty-five years with the “recommendation of mental health treatment.”
This order for mental health evaluation does not signal that Defendant was
incapable of understanding the proceedings against him or assisting his
counsel.
Defendant asserts that the need for appointment of a sanity
commission was supported by the Social Security Administration
determination in early 2010 that he was disabled. At the hearing on the
written motion to appoint a sanity commission, defense counsel informed the
trial court that Defendant received disability benefits as a result of his
condition. That allegation was not supported by any documentation or
testimony at the hearing on the motion. Further, the letter from the Social
Security Administration attached to Defendant‟s pro se brief as Exhibit 2
will not be considered by this court, as it was not filed in the trial court. See
Uniform Rules–Courts of Appeal, Rule 1-3.
Therefore, we find no error in the trial court‟s decision not to appoint
15 Self Representation
Defendant asserts that “[t]he trial court erred in allowing Gregory
Harrell to represent himself at trial and the habitual offender hearing.” The
supreme court in State v. Bell, 09-199, pp. 13-27 (La. 11/30/10), 53 So.3d
437, 445-54, cert. denied, ___ U.S. ___, 131 S.Ct. 3035 (2011) (citations
omitted) addressed the issue of self-representation by defendants with
mental illnesses or defects:
The Sixth Amendment expressly provides that an accused in a criminal trial has the right to the assistance of counsel. However, the Supreme Court in Faretta v. California, held the Sixth Amendment also “implies a right of self-representation.” 422 U.S. 806, 822, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975)[.] The Faretta Court noted that the self-represented defendant can not later claim he was denied effective assistance by his own representation. Id. at 834, 95 S.Ct. at 2541 n. 46. Certain limits have been put on the right of self-representation due to the tension between it and the express right to the assistance of counsel.
....
. . . [T]he question presented is whether the waiver was valid under existing state law, which involves determining whether the defendant was competent to waive counsel and whether he did so knowingly and intelligently with full understanding of the risks and possible consequences. “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Trial courts should inquire into the accused‟s age, education, and mental condition in deciding, on the totality of the circumstances, whether the accused understands the significance of the waiver. Further, a defendant must be made aware of the dangers and disadvantages of self-representation so that the record demonstrates “he knows what he is doing and his choice is made with his eyes open.” In other words, a defendant must know the consequences of his action. The assertion of the right must also be clear and unequivocal.
Defendant contends that the trial court failed to ask about Defendant‟s
age, level of education, and whether Defendant had any legal training.
16 Instead, the district court noted that Defendant assisted in choosing his jury,
made nice gestures to the jurors, and had great eye contact. The defense
points out that the trial court failed to mention the nature of the charges
against Defendant and the applicable penalty range during the dangers and
disadvantages colloquy. The district court dismissed appointed counsel over
the attorney‟s strenuous objections and ordered him to assist Defendant in
his self-representation. The trial court further denied Defendant‟s motion for
a continuance.
The defense further points out that, when Defendant refused
assistance of counsel in reference to his habitual offender bill, the trial court
conducted a dangers and disadvantages hearing but failed to inquire into
Defendant‟s age, education, and mental condition. Additionally, the defense
asserts that the district court failed to advise Defendant of the consequences
of being found a habitual offender. The defense urges that Defendant was
prejudiced because he failed to file a timely objection to the habitual
offender bill. The defense adds that Defendant expressed a desire for a life
sentence and complains that the sentencing court continued with the hearing
despite the objection raised by the attorney aiding Defendant. The attorney
informed the court that Defendant had “some emotional and mental health
issues that keep him from understanding the gravity of the proceedings.”
Defendant asserts, therefore, that the trial court failed to make the
inquiries necessary to determine whether Defendant should be allowed to
represent himself. The defense concludes that this is tantamount to a denial
of the right to assistance of counsel and meant that Defendant‟s waiver of
this right was neither knowing nor intelligent. The defense urges, therefore,
that this court should reverse Defendant‟s convictions and sentences. 17 The record shows that Defendant wanted to actively participate in and
ultimately take over his defense. In the pretrial setting, Defendant repeatedly
filed pro se motions. On the first day of trial, November 17, 2010, Defendant
moved to represent himself at trial. The trial court‟s questioning of
Defendant at that juncture shows that the trial court made efforts to ensure
that Defendant was fully cognizant of the repercussions of his decision.
The record shows that, during the trial, Michael Jeansonne, who had
previously represented Defendant and was ordered to assist him in self-
representation, had to leave because of a family medical appointment. At
that time, Defendant asked for another attorney to assist him at trial; when
he maintained that he wanted to represent himself, the district court did not
call another attorney to replace Mr. Jeansonne. However, after the State
rested its case, Defendant asked if he could consult with an attorney before
presenting his defense, and the trial court granted Defendant‟s request by
sending someone to search the other courtrooms for another indigent
defender. Defendant then had an opportunity to ask that attorney, J. Marc
Lampert, questions, and Defendant, thereafter, assured the district court that
Mr. Lampert, who was familiar with the case because he had been the
attorney originally assigned to represent Defendant, had satisfactorily
addressed Defendant‟s concerns. At the trial court‟s request, Mr. Lampert
stayed throughout the remainder of trial for the purpose of being available to
Defendant in the capacity of a consultant. Defendant ultimately chose to
refrain from testifying at trial; therefore, the State did not get to elicit prior
crimes evidence.
Prior to trial, Defendant demonstrated his literacy, his grasp of legal
issues, and his desire to act on his own behalf by repeatedly filing pro se 18 motions. At voir dire, Defendant demonstrated his ability to assist in his
defense by making informed choices concerning which potential jurors
should serve on the jury. At the dangers and disadvantages hearing,
Defendant clearly and unequivocally maintained his desire to represent
himself at trial over the express objections of his appointed attorney and
against the advice of the district court. Defendant showed that he was
prepared for trial when he revealed that he already knew what the witnesses
were going to say and that he already had questions prepared for those
witnesses. The district court took care to ensure that Defendant understood
his right against self-incrimination and the consequences of waiving that
right. Defendant showed his understanding of this right by not testifying at
trial. The trial court also questioned Defendant about his history of mental
illness, about any medications Defendant may have been taking, and about
any current treatment Defendant may have been undergoing for mental
illness. Nothing in Defendant‟s responses revealed a defect that would bar
Defendant from being able to represent himself. Thus, Defendant
demonstrated that his waiver of his right to counsel was knowing and
voluntary.
Furthermore, as discussed in Bell, the fact that, due to his lack of legal
training, Defendant may have made mistakes a licensed attorney would have
avoided has no bearing on whether his decision to represent himself was
knowing and voluntary because Defendant waived any claim of ineffective
assistance of counsel when he asserted his right to self-representation.
The defense also asserts that the trial court erred in allowing
Defendant to represent himself at his habitual offender hearing. The defense
complains that the dangers and disadvantages colloquy was insufficient and 19 that Defendant should have been prohibited from self-representation because
he expressed a desire for life imprisonment. Though the defense contends
that Defendant was prejudiced by the failure to timely object to the habitual
offender bill, it fails to either argue or demonstrate that there was a valid
objection thereto.
On March 2, 2011, the sentencing court conducted a second dangers
and disadvantages hearing in reference to Defendant‟s motion to represent
himself for the habitual offender proceeding. The transcript of that hearing
shows that Defendant clearly expressed his desire to represent himself even
after both his attorney and the sentencing court advised him of the dangers
and difficulties that would arise from the decision.
Though the defense asserts that Defendant was unfairly denied his
right to assistance of counsel, examination of the record shows that Harold
Murry acted, at a minimum, as co-counsel for Defendant even though he
was no longer assigned to the case. The record shows that Mr. Murry was
present at the habitual offender hearing, that Mr. Murry continued to interact
with the court on Defendant‟s behalf, that Mr. Murry explained things to
Defendant that Defendant did not understand, that Mr. Murry questioned and
cross-examined the State‟s sole witness on Defendant‟s behalf, that Mr.
Murry also made objections to the State‟s evidence, that Mr. Murry advised
Defendant as to the wisdom of testifying at the hearing, and that Mr. Murry
successfully made an oral motion for reconsideration of the habitual
offender penalty. Therefore, the defense‟s assertion is without merit;
Defendant was effectively represented by counsel at the habitual offender
proceeding.
20 The defense complains that Defendant showed his lack of capacity by
stating that he wished to receive life imprisonment. Examination of the
relevant record passages shows that Defendant was requesting life
imprisonment so that he could go to a “real” prison. He wanted to go to
either Angola or Hunt Correctional Facility because his prior incarcerations
at “satellite” facilities did not result in his rehabilitation. It appears that
Defendant was expressing his desire for a penalty harsh enough to deter him
from committing future criminal acts and for assignment to a penal facility
that would be conducive to the rehabilitation of his criminal proclivities.
Moreover, the district court did not impose life imprisonment. Hence,
Defendant‟s request for life imprisonment, for the reasons expressed, does
not show that Defendant was incapable of representing himself. Moreover,
as Defendant received the minimum possible sentence, Defendant was not
prejudiced by his statement.
Additionally, even though the defense contends that Defendant did not
understand the consequences of being adjudicated a habitual offender,
Defendant clearly indicated his understanding that the penalty he would
receive upon being adjudicated a fourth felony offender would range from
twenty years to life imprisonment.
Accordingly, we find no error in the trial court‟s decision to allow
Defendant to represent himself.
Sufficiency of the Evidence on Multiple Offender Bill
Defendant argues that the State “failed to prove beyond a reasonable
[doubt] that [he] was a fourth time felony offender.” Defendant alleges that
the State‟s exhibits fail to show he was represented by counsel at his prior
guilty pleas or that he was advised of and waived his right against self- 21 incrimination, his right to trial by jury, and his right to confront his accusers.
Based on this assertion, Defendant asks this court to vacate his habitual
offender adjudication.
The State filed a multiple offender bill on December 7, 2010, alleging
Defendant was a fourth felony offender. On March 2, 2011, Defendant filed
a pro se Motion to Quash Habitual Offender Bill. Therein, he stated that the
District Attorney filed the bill out of vengeance and trickery. He alleged that
had he been afforded proper representation by an attorney and “they” had
moved for appointment of a sanity commission, he would not have been
convicted. He also alleged that the State improperly classified him as a four
time offender when, in fact, he was a two time offender. He further alleged
that his sentence was grossly out of proportion to the severity of the crime.
The trial court denied the motion without a hearing on March 3, 2011.
Defendant was subsequently adjudicated a fourth felony offender and
sentenced to twenty years.
At the habitual offender hearing, Defendant objected to the
introduction of State‟s Exhibits 1, 2, 3, and 4. He did not set forth a basis for
that objection and further failed to object to the validity of his prior
In State v. Lemon, 08-619, p. 5 (La.App. 5 Cir. 12/16/08), 3 So.3d 20,
24, the fifth circuit sated: “[a] defendant must make a contemporaneous oral
objection or file a written response to a habitual offender bill in order to
preserve for appeal the issue of sufficiency of proof of a prior conviction
based on a guilty plea.” In State v. Lewis, 43,402, p. 12 (La.App. 2 Cir.
8/13/08), 990 So.2d 109, 117, the second circuit found: “[d]efendant did not
22 make an objection under La. R.S. 15:529.1(D)(1)(b) to the validity of his
prior convictions and is barred from raising that issue now.”
Defendant failed to attack the validity of his prior guilty pleas in his
Motion to Quash and did not object to the validity of those convictions at the
habitual offender hearing. Therefore, he is barred from attacking the
sufficiency of those convictions on appeal. Accordingly, we find no error in
the finding that Defendant was a fourth felony offender.
CONCLUSION
Defendant‟s convictions are affirmed. Defendant‟s habitual offender
sentence of twenty years is vacated, and the case remanded for resentencing
with the instruction to specify which one of Defendant‟s two sentences is
being enhanced or whether both sentences are being enhanced. The trial
court is also to specify which original sentence or sentences are being
vacated.
CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.