STATE OF LOUISIANA * NO. 2024-KA-0748
VERSUS * COURT OF APPEAL KENNETH AUGUSTINE * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 544-264, SECTION “C” Honorable Benedict J. Willard, Judge ****** Judge Dale N. Atkins ****** (Court composed of Chief Judge Roland L. Belsome, Judge Paula A. Brown, Judge Dale N. Atkins)
Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT P. O. Box 2333 Marrero, LA 70073
COUNSEL FOR DEFENDANT/APPELLANT, Kenneth Augustine
Jason R. Williams, District Attorney Brad Scott, Assistant District Attorney, Chief of Appeals Corbin Bates, Assistant District Attorney PARISH OF ORLEANS 619 South White Street New Orleans, LA 70119
COUNSEL FOR APPELLEE, State of Louisiana
REMANDED WITH INSTRUCTIONS DECEMBER 15, 2025 DNA
RLB
PAB
This is a criminal case. Appellant, Kenneth Augustine (“Mr. Augustine”),
appeals his convictions for second degree murder and obstruction of justice.
Appellee is the State of Louisiana (“State”). For the following reasons, we remand
this matter for further proceedings consistent with this Opinion.
RELEVANT PROCEDURAL HISTORY
On January 24, 2019, by bill of indictment, the State charged Mr. Augustine
with two counts of second degree murder, in violation of La. R.S. 14:30.1; two
counts of obstruction of justice, in violation of La. R.S. 14:130.1, in connection
with the commission of second degree murder; and one count of possession of a
firearm by a convicted felon in violation of La. R.S. 14:95.1. Mr. Augustine pled
not guilty to all of the charges.
First Motion to Appoint Sanity Commission
Thereafter, on June 21, 2022, Mr. Augustine filed a “Motion to Appoint [a]
Sanity Commission,” which the district court granted, and the sanity commission
issued its report on August 12, 2022. Then, on September 15, 2022, the district
court held a competency hearing and ruled Mr. Augustine incompetent to proceed
1 to trial. The district court remanded Mr. Augustine to Eastern Louisiana Mental
Health System (“ELMHS”) for treatment.
Subsequently, the State submitted an August 15, 2023 “Competency
Restoration Status Report” (“Report”) to the district court regarding Mr.
Augustine’s treatment. In the Report, the State included a July 11, 2023 progress
note authored by Dr. Sanket Vyas, M.D. (“Dr. Vyas”), of the ELMHS. Dr. Vyas’
progress note listed the diagnostic impressions for Mr. Augustine as
schizoaffective disorder, antisocial personality traits, and substance use disorder.
Additionally, Dr. Vyas’ progress report listed a plan to “refer [Mr. Augustine] to
psychology for a malingering examination as he does appear to be exaggerating his
deficits as well as his symptoms despite being on medication.”
On November 9, 2023, the district court held a mental competency hearing.
When counsel for Mr. Augustine asked Dr. Myrline Belzince (“Dr. Belzince”), a
forensic psychiatrist, whether it was her “appreciation that even though [Dr. Vyas’
Report] include[d] malingering, [Dr. Vyas] also diagnosed Mr. Augustine with a
serious mental illness [i.e., schizoaffective disorder],” she responded, “Yes. The
two are not mutually exclusive.” Dr. Belzince answered affirmatively when asked
whether Mr. Augustine might decompensate if he stopped taking medication and if
he had a change in environment, i.e., if he moved from the ELMHS to jail. Dr.
Janet Johnson (“Dr. Johnson”) also testified at the hearing, stating “[Mr.
Augustine] has a serious mental illness, and so because of that, he is at an
increased risk of decompensation with stress.” Nonetheless, both doctors opined
that Mr. Augustine was competent to proceed to trial. Following the hearing, the
district court deemed Mr. Augustine competent.
2 Second Motion to Appoint Sanity Commission
Eventually, the district court set the trial in this matter for May 6, 2024.
However, on that day, the defendant filed several motions, including a motion to
continue trial, which the district court granted. The district court reset trial to May
13, 2024, with a pretrial conference scheduled for May 7, 2024. In pertinent part,
on May 6, 2024, Mr. Augustine also filed another “Motion to Appoint a Sanity
Commission” (“Second Motion to Appoint”). Therein, counsel for Mr. Augustine
noted the district court previously found Mr. Augustine incompetent; recounted
that the Report listed Mr. Augustine as suffering from schizoaffective disorder; and
reiterated the medical testimony that Mr. Augustine was at risk of decompensating.
Further, in the Second Motion to Appoint, counsel for Mr. Augustine provided the
following new reasons for the filing of the Motion:
6. Mr. Augustine committed an act where he physically harmed himself on Tuesday, April 30, 2024. This act required that Mr. Augustine be brought to the hospital that evening.
7. On Wednesday, May 1, 2024, Mr. Augustine came to court with a cast on his leg and needed to use a walker, and counsel attempted to raise competency at that time.
The district court did not sign the order attached to the Second Motion to Appoint.1
The district court continued the May 7, 2024 pretrial conference by one day;
and, at the pretrial conference on May 8, 2024, the district court set a competency
hearing for May 9, 2024. The record establishes that on the date of the scheduled
competency hearing, May 9, 2024, Mr. Augustine was not transported to court.
Specifically, the minute entry stated that “[Mr. Augustine] is in the custody of the
sheriff and was not brought into open court. [Mr. Augustine] was not on jail list.”
1 Curiously, in addition to listing the pretrial conference date and the rescheduled trial
date, the district court’s May 6, 2024 minute entry also stated that the district court set a mental competency hearing in this matter for May 16, 2024, i.e., a date after the rescheduled trial date.
3 The appellate record does not reflect that the district court ever reset the
competency hearing; that Mr. Augustine lodged an objection to the district court’s
failure to reset the competency hearing; and that the district court ever ruled on Mr.
Augustine’s Second Motion to Appoint.
Convictions and Sentences
Ultimately, jury selection commenced on May 14, 2024, and on May 17,
2024, the jury returned guilty verdicts on all counts. On May 20, 2024, Mr.
Augustine filed a “Motion for New Trial”; a “Motion for Post-Verdict Judgment of
Acquittal”; and a “Motion for Arrest of Judgment for Convictions of Obstruction
of Justice.” The district court denied all three of Mr. Augustine’s motions. That
same day, May 20, 2024, the district court sentenced Mr. Augustine to life in
prison without the benefit of probation, parole, or suspension of sentence for the
two second degree murder convictions; forty years in prison each on the two
obstruction of justice convictions; and twenty years in prison for the felon in
possession of a firearm conviction. The district court ordered all sentences to run
concurrently with credit for time served. Thereafter, Mr. Augustine timely
appealed to this Court.
ASSIGNMENTS OF ERROR
On appeal, Mr. Augustine asserts four assignments of error:
1. The evidence was insufficient to uphold the convictions for second degree murder and obstruction of justice.
2. The [district] court erred in denying the defense motion to continue.
3. The [district] court erred in failing to hold the requested competency hearing.
4. The [district] court erred in overruling the defense objections during rebuttal close.
4 Because we find resolution of this appeal turns on Mr. Augustine’s third
assignment of error, which constitutes a threshold issue that impacts the validity of
the district court proceedings, our discussion will focus on same. Before turning to
our discussion, however, we next delineate our errors patent review.
ERRORS PATENT REVIEW
In accordance with La. C.Cr.P. art. 920, we review all criminal appeals for
errors patent. An error patent is one “that is discoverable by a mere inspection of
the pleadings and proceedings and without inspection of the evidence.” La. C.Cr.P.
art. 920(2). We have reviewed the pleadings and proceedings in this record and
find that there is an error patent. The error patent relates to the issue raised by Mr.
Augustine in his third assignment of error, so we will discuss it below. See State v.
Pullen, 2019-4, p. 6 (La. App. 5 Cir. 8/7/19), 279 So.3d 443, 448 (decreeing it an
error patent that the record contained no judgment regarding defendant’s
competency to stand trial after the defendant filed a motion raising the issue of his
competency).
DISCUSSION
As quoted above, Mr. Augustine asserts in this third assignment of error that
the district court erred in failing to hold his requested competency hearing.
According to Mr. Augustine, by failing to hold his requested competency hearing,
the district court also failed “to observe procedures adequate to protect [his] right
not to be tried or convicted while incompetent to stand trial,” thereby “depriv[ing]
him of his due process right to a fair trial” under the Fourteenth Amendment to the
United States Constitution. Mr. Augustine argues that this Court should vacate his
convictions and sentences because of this violation of his Fourteenth Amendment
5 rights. In support of his position, Mr. Augustine cites to State v. Perkins, 2000-9
(La. App. 5 Cir. 5/17/00), 759 So.2d 334.
Countering, the State contends that “[a]lthough [Mr. Augustine] raised
competency leading to his trial date, a defendant is not entitled to be evaluated by a
sanity commission simply because competency is raised.” Rather, according to the
State, a defendant is entitled to evaluation by a sanity commission only if the
district court first assigns a sanity commission to evaluate him as was the case in
Perkins, 2000-9, 759 So.2d 334. In the matter sub judice, by contrast, the State
explains that when Mr. Augustine raised the competency issue again right before
trial, the district court did not assign a sanity commission but rather “relied on the
previously issued [R]eport” and “found that [Mr. Augustine] was both competent
and a malingerer,” such that “[t]he [district] court properly rejected [Mr.
Augustine]’s attempt to raise competency to avoid trial.” The State contends “[t]his
Court should not disturb the [district] court’s decision because the determination of
[a] defendant’s competency is a fact question to be determined based on the sound
discretion of the [district] court.”
As explained by the Louisiana Fifth Circuit Court of Appeal (“Fifth
Circuit”), “[a] criminal defendant has a constitutional right not to be tried while
legally incompetent.” State v. Pullen, 2019-4, p. 6 (La. App. 5 Cir. 8/7/19), 279
So.3d 443, 449 (citing State v. Carmouche, 2001-0405, p. 29 (La. 5/14/02), 872
So.2d 1020, 1041). Stated differently, “a person whose mental condition is such
that he lacks the capacity to understand the nature and object of the proceedings
against him, to consult with counsel[,] and to assist in preparing his defense may
not be subject to trial.” State v. Nomey, 613 So.2d 157, 161 (La. 1993) (citing
Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975)).
6 Delineating “[h]ow mental incapacity is raised” and the effect of doing so, La.
C.Cr.P. art. 642 provides:
The defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.
(Emphasis added). That is, “[o]nce the question of the defendant’s mental capacity
to proceed is raised, La.C.Cr.P. art. 642 mandates a stay in the prosecution until the
defendant is found to have the mental capacity to proceed.” Perkins, 2000-9, p. 5,
759 So.2d at 337.
One of the official revision comments to La. C.Cr.P. art. 642 explains the
purpose behind the Article:
When the question of the defendant’s mental capacity to proceed has been raised, all proceedings in the case are stayed until that issue is determined, thus making sure that no action prejudicial to the defendant will be taken until the defendant’s capacity to understand the nature of the proceedings and to assist in his defense has been established.
La. C.Cr.P. art. 642, Official Revision Comment (b). See also Perkins, 2000-9, pp.
5-6, 759 So.2d at 337 (citing State v. Calais, 615 So.2d 4, 5 (La. App. 3d Cir.
1993)). As this Court has held, “[a] district court’s failure to follow statutory
provisions in determining defendant’s mental capacity to proceed violates a
defendant’s due process rights.” State v. Jones, 2019-0440, p. 13 (La. App. 4 Cir.
8/5/20), 305 So.3d 919, 926 (citing State v. Cretian, 2017-0777, p. 9 (La. App. 4
Cir. 1/24/18), 238 So.3d 473, 478).
If the district court “has reasonable ground to doubt the defendant’s mental
capacity to proceed,” then “[t]he court shall order a mental examination of the
defendant.” La. C.Cr.P. art. 643. Thereafter, “[w]ithin seven days after a mental
7 examination is ordered, the [district] court shall appoint a sanity commission to
examine and report upon the mental condition of the defendant.” La. C.Cr.P. art.
644(A). However, as the Louisiana Third Circuit Court of Appeal has explained,
“[i]t is only when a ‘bona fide question [is] raised regarding a defendant’s
capacity, [that] the failure to observe procedures to protect a defendant’s right not
to be tried or convicted while incompetent to stand trial deprives him of his due
process right to a fair trial.’” State v. McCurley, 2015-24, p. 5 (La. App. 3 Cir.
6/3/15), 165 So.3d 1232, 1235 (second and third alterations in original) (quoting
State ex rel. Seals v. State, 2000-2738, p. 6 (La. 10/25/02), 831 So.2d 828, 833;
citing State v. Rogers, 419 So.2d 840, 844 (La. 1982)). The defendant bears the
burden of “establish[ing] that he lacks the capacity to understand the proceedings
against him and that he is unable to assist with his defense in a meaningful way.”
State v. German, 2012-1293, pp. 18-19 (La. App. 4 Cir. 1/22/14), 133 So.3d 179,
194 (citing State v. Bickham, 404 So.2d 929, 934 (La. 1981)). The defendant
“cannot rest on mere allegations without supporting evidence to show that [he] is
unable to understand the nature of the proceedings.” Id. at p. 19, 133 So.3d at 194
(citing Bickham, 404 So.2d at 935).
As such, “the ordering of a mental examination is not guaranteed.”
McCurley, 2015-24, p. 4, 165 So.3d at 1235 (citing State v. Anderson, 2006-2987,
p. 21 (La. 9/9/08), 996 So.2d 973, 992). Rather, as this Court has held, “[t]he
determination of whether there are reasonable grounds to doubt a defendant’s
mental capacity and to order a mental examination lies within the discretion of the
[district] court[,] and the [district] court’s determination will not be set aside absent
a clear abuse of discretion.” German, 2012-1293, p. 19, 133 So.3d at 194 (first
citing Bickham, 404 So.2d at 934; and then citing State v. Gauthier, 2007-0743, p.
8 10 (La. App. 4 Cir. 3/12/08), 978 So.2d 1161, 1168). If the district “court does not
find any reasonable ground to doubt [the defendant’s] present capacity, the
proceedings may continue.” McCurley, 2015-24, p. 4, 165 So.3d at 1235 (citation
omitted).
Nonetheless, the language of La. C.Cr.P. art. 642 is clear and compulsory.
“Once the question of the defendant’s mental capacity to proceed is raised, La.
C.Cr.P. art. 642 mandates a stay in the prosecution until the defendant is found to
have the mental capacity to proceed.” Perkins, 2000-9, p. 5, 759 So.2d at 337
(emphasis added). It is axiomatic from the text of La. C.Cr.P. art. 642 that the
district court must rule one way or another regarding the defendant’s mental
capacity before proceeding. That is, the district court can deem the defendant
competent and move forward with the proceedings or order a mental examination
to further examine the competency issue, but the district court “clearly err[s] as a
matter of law under [La. C.Cr.P. art. 642] by [going forward with the] trial without
making any assessment of [the] defendant’s capacity to proceed.” Seals, 2000-
2738, p. 8, 831 So.2d at 834. Moreover, such ruling on the defendant’s capacity to
proceed must be evident in the record on appeal before the appellate court proceeds
with the merits of the appeal. See Pullen, 2019-4, pp. 5-6, 279 So.3d at 448-49
(declining to consider the merits of the defendant’s assignments of error after
“find[ing] considerable error in the sanity commission procedures conducted by
the district court” in light of the lack of anything in the record establishing the
district court “rendered a judgment as to [the] defendant’s competency to stand
trial”). See also State v. Johnson, 49,848, p. 5 (La. App. 2 Cir. 5/20/15), 166 So.3d
1170, 1174 (holding that if “the record does not reflect . . . that [the] defendant’s
9 competency was ever determined by the [district] court prior to his guilty plea
being accepted, the guilty plea is invalid” (citations omitted)).
If the district court “fail[ed] to resolve the issue of [the] defendant’s capacity
to proceed” or the appellate record does not establish the district court resolved the
issue of the defendant’s capacity, this “may result in nullification of the conviction
and sentence under . . . Nomey, 613 So.2d [at] 161-62 . . ., or a nunc pro tunc
hearing to determine competency retrospectively under State v. Snyder, [19]98-
1078 (La. 4/14/99), 750 So.2d 832.” Seals, 2000-2738, p. 6, 831 So.2d at 833. In
this latter regard, a nunc pro tunc hearing constitutes “an exception to immediate
nullification [as] . . . recognized by the Louisiana Supreme Court.” State v.
Matthews, 2000-2115, p. 17 (La. App. 1 Cir. 9/28/01), 809 So.2d 1002, 1016
(citations omitted).
“In order for the exception to nullification to be applicable,” a nunc pro tunc
hearing serving as “a meaningful retrospective determination of competence” must
be possible. Seals, 2000-2738, p. 8, 831 So.2d at 834. The meaningfulness of the
nunc pro tunc hearing is important for ensuring “the defendant’s due process rights
are adequately protected.” Pullen, 2019-4, pp. 7-8, 279 So.3d at 450 (citing
Reynolds v. Norris, 86 F.3d 796, 802 (8th Cir. 1996)). If “the state of the record,
together with such additional evidence as may be relevant and available, permits an
accurate assessment of the defendant’s condition at the time of the original . . .
proceedings,” then “[a] meaningful determination is possible.” Id. at p. 8, 279
So.3d at 450 (citation omitted).
The district court “is in the best position” to determine “‘if a meaningful
inquiry into the defendant’s competency’ may still be had,” so the district court is
“vested with the discretion [to make] this decision.” Seals, 2000-2738, p. 6, 831
10 So.2d at 833 (quoting Snyder, 1998-1078, pp. 30-31, 750 So.2d at 854-55). See
also Matthews, 2000-2115, p. 17, 809 So.3d at 1016 (holding “[t]he [district] court
is in the best position to determine whether it can make a retrospective
determination of defendant’s competency during his trial and sentencing” (quoting
Snyder, 1998-1078, pp. 30-31, 750 So.2d at 855)). “This determination” of whether
a meaningful retroactive competency hearing can be held “must be decided on a
case-by-case basis, under the guidance of Nomey, [613 So.2d 157,] Snyder, [1998-
1078, 750 So.2d 832,] and their progeny.” Seals, 2000-2738, p. 6, 831 So.2d at 833
(citation omitted).
For example, in Snyder, the Louisiana Supreme Court (“Supreme Court”)
listed some relevant factors for consideration as: the passage of time; the
availability of witnesses; and the existence of evidence on the record about the
defendant’s mental state at the time of the trial. 1998-1078, p. 31, 750 So.2d at 855
(citing Miller v. Dugger, 838 F.2d 1530 (11th Cir. 1988)). Further, in Snyder, the
Supreme Court noted the “taking of additional testimony and evidence, including
medical testimony relating to defendant’s mental condition during that time prior
to trial when he was allegedly unstabilized . . . and the records of [any] examining
physicians made during that time period” might be necessary to assist the district
court in determining whether the defendant was competent. Id. (citing United
States v. Renfroe, 825 F.2d 763, 767 (3rd Cir. 1987)). Additionally, in Seals, the
Supreme Court listed factors for consideration as:
[W]hether [t]he [defendant] is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to
11 defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.
2000-2738, p. 7, 831 So.2d at 833-34 (alterations in original) (quoting State v.
Bennett, 345 So.2d 1129, 1137 (La. 1977)). In terms of the burden of proof at the
nunc pro tunc hearing, “[t]he State bears the burden of providing sufficient
evidence for the court to make a rational decision.” Pullen, 2019-4, p. 8, 279 So.3d
at 450 (citing Seals, 2000-2738, pp. 6-7, 831 So.2d at 834).
Turning to the matter sub judice, we agree with the State that “a defendant is
not entitled to be evaluated by a sanity commission simply because competency is
raised.” As stated previously, under La. C.Cr.P. art. 642 and the jurisprudence
interpreting it, if the district “court does not find any reasonable ground to doubt
[the defendant’s] present capacity, the proceedings may continue.” McCurley,
2015-24, p. 4, 165 So.3d at 1235 (citation omitted). The problem in this matter,
however, is that there is no transcript of a hearing, ruling in the record, or minute
entry that indicates the district court rendered a judgment as to Mr. Augustine’s
competency to stand trial after his counsel filed the Second Motion to Appoint and
raised bona fide questions about his competency in light of a recent incident of
self-harm. Though the State contends the district court “relied on the previously
issued [R]eport” and “found that [Mr. Augustine] was both competent and a
malingerer,” such that “[t]he [district] court properly rejected [Mr. Augustine]’s
attempt to raise competency to avoid trial” with his Second Motion to Appoint, the
State does not provide a record citation in its brief that supports this assertion.
When Mr. Augustine filed his Second Motion to Appoint, he raised the issue of his
competency anew, thus requiring the district court to make a specific ruling on the
record regarding Mr. Augustine’s competency at that time. As this Court has
12 previously explained, “[a]s an appellate court, we are a court of record and can
only review what is contained in the record on review.” State v. Crowther, 2024-
0625, p. 15 (La. App. 4 Cir. 1/31/25), 408 So.3d 277, 287-88 (internal quotation
marks omitted) (quoting JoAnn Place v. Ricard, 2022-0456, p. 12 (La. App. 4 Cir.
12/27/22), 356 So.3d 518, 527). Thus, we cannot assume, as the State suggests,
that the district court ruled Mr. Augustine competent after the Second Motion to
Appoint when nothing in the record actually supports such a finding.
Nonetheless, we disagree with Mr. Augustine that vacatur of his convictions
and sentences is the appropriate course of action at this juncture. Rather, in light of
the above-discussed jurisprudence, we remand this matter to the district court for
the sole purpose of determining whether a nunc pro tunc competency hearing is
possible. If the district court believes that it is possible to determine Mr.
Augustine’s competency at the time of his trial, the district court is directed to hold
an evidentiary hearing. If the district court determines Mr. Augustine was
competent at the time of his trial, no new trial is required. If the district court
determines Mr. Augustine was incompetent at the time of trial or determines the
inquiry into competency is impossible, Mr. Augustine is entitled to a new trial.
Matthews, 2000-2115, p. 17, 809 So.2d at 1016 (citing Snyder, 1998-1078, pp. 31-
32 & 43, 750 So.2d at 855-56 & 863). Mr. Augustine’s right to appeal is reserved.
Id. (citing Snyder, 1998-1078, p. 43, 750 So.2d at 863).
The district court shall make the determination of whether a nunc pro tunc
competency hearing is possible and inform this Court of its determination within
thirty days of this Opinion. In light of our decision to remand this matter, we
pretermit discussion of Mr. Augustine’s first, second, and fourth assignments of
error.
13 DECREE
For the foregoing reasons, we remand this matter for further proceedings
consistent with this Opinion.
REMANDED WITH INSTRUCTIONS