Judgment rendered September 27, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,257-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
RICHARD LEE GILBERT Appellant
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 21CR04974
Honorable Bernard Scott Leehy, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Holli Ann Herrle-Castillo
ROBERT STEPHEN TEW Counsel for Appellee District Attorney
KALEE MORGAN MOORE Assistant District Attorney
Before COX, ROBINSON, and MARCOTTE, JJ. MARCOTTE, J.
This criminal appeal arises from the Fourth Judicial District Court,
Parish of Ouachita, the Honorable Scott Leehy presiding. Defendant,
Richard Lee Gilbert (“Gilbert”), was convicted of second-degree murder
under La. R.S. 14:30.1. Gilbert was sentenced to life imprisonment, to be
served without the benefit of probation, parole, or suspension of sentence.
Gilbert now appeals, arguing that there was insufficient evidence to support
his conviction and that the trial court erred by not granting his motion to
appoint a sanity commission. For the following reasons, we affirm his
conviction and sentence.
FACTS
On September 21, 2021, Gilbert shot Clara Hardwell three times after
being told that Ms. Hardwell struck his mother, Shirley Gilbert (“Shirley”),
in the head. The altercation between Ms. Hardwell and Shirley was over
five dollars that Ms. Hardwell claimed Shirley owed her. Following the
shooting, Ms. Hardwell was rushed to the hospital but was pronounced dead
upon arrival. Gilbert fled the scene of the crime and hid in an abandoned
house, but was eventually arrested by police for the shooting death of Ms.
Hardwell.
On December 16, 2021, Gilbert was charged by bill of indictment
with the second-degree murder of Ms. Hardwell, in violation of La. R.S.
14:30.1. Gilbert pled not guilty and sought the appointment of a sanity
commission.
At the hearing on the motion to appoint a sanity commission, Gilbert’s
counsel called Sam Dickens, an investigator with the Indigent Defender
Board, to testify. Mr. Dickens testified that he interviewed Gilbert on June 4, 2022, and during the interview, Gilbert could answer his questions but
often rambled. Mr. Dickens said that as he talked to Gilbert, “the word
schizophrenia came up.” Mr. Dickens stated that when he pressed Gilbert
for more information about his claimed schizophrenia, Gilbert could not tell
him how long it had been since he had been diagnosed or even who
diagnosed him.
Mr. Dickens said that Gilbert understood he was facing murder
charges and a possible life sentence without parole. Mr. Dickens also said
that he did not know if an actual doctor had diagnosed Gilbert, or if the
condition was just self-reported to health care providers.
The state argued that the defense did not show that Gilbert’s alleged
schizophrenia caused him to be unable to proceed or mentally incompetent
to understand the nature of the charge against him and appreciate its
seriousness. The state pointed out that Mr. Dickens’ testimony established
that on June 4, 2022, Gilbert understood what the penalty and charges
against him were. It was the state’s position that Gilbert knew the charges
against him and had a “complete understanding of the defense that he’s
asserting.” In support of this argument, the state introduced into evidence
recordings played for the trial court of phone calls made by Gilbert from the
Ouachita Correctional Center (“OCC”) to witnesses between September of
2021, and May 23, 2022, in order to show Gilbert’s continued awareness of
what happened as well as his competency to stand trial.
On June 13, 2022, the trial court denied Gilbert’s motion to appoint a
sanity commission, noting that it was “convinced that the defense has not
met its burden by a preponderance of the evidence that Gilbert was
incapable of assisting counsel.” The trial court found that the phone calls 2 made by Gilbert from the OCC evidenced his understanding of available
defenses and the severity of the charges against him. The trial court further
observed that a close review of the medical records showed that the word
“schizophrenia” appeared as the result of Gilbert’s self-reporting of his
alleged condition.
Gilbert sought emergency writs, which were not considered by this
court due to being untimely filed. Gilbert sought writs again on June 21,
2022, which this court denied.
Following the empaneling of a 12-member jury, a trial was held July
18-19, 2021, where the following evidence was adduced. Detective Chad
Grubbs (“Det. Grubbs”) is a detective with the West Monroe Police
Department. On September 23, 2021, Det. Grubbs responded to a call that
there had been a homicide on the porch of a duplex apartment at 108
Linderman Avenue in West Monroe, Louisiana. Upon arrival, Det. Grubbs
ascertained that the porch where the homicide occurred was directly in front
of an apartment occupied by Shirley, and that the adjacent apartment was
occupied by Shirley’s sister, Sheila Gilbert (“Sheila”).
Det. Grubbs was shown a series of photographs of the apartments’
exterior and porches, and confirmed that they showed what he saw when he
arrived at the scene. After inspecting the area where the shooting occurred,
Det. Grubbs took statements from Shirley, Sheila, Jesse Jones, and Linda
Preston, all of whom he found to be believable. Det. Grubbs said that in his
interview with Shirley, she never mentioned anything about her son acting in
protection of her when he shot Ms. Hardwell. The recorded statements that
Det. Grubbs took from Shirley and Sheila were admitted into evidence and
played for the jury. 3 Jesse Jones lived near Shirley and witnessed the immediate aftermath
of Ms. Hardwell’s murder. He testified that he was riding his bicycle near
108 Linderman Avenue when he heard gunshots. Curious as to what had
occurred, Mr. Jones approached the house from where he heard the gunshots
and saw Ms. Hardwell lying on the ground near the front porch of the house.
Mr. Jones said he saw Gilbert get into the passenger seat of a green truck
parked in the driveway, and then speed away. Mr. Jones testified that when
he turned Ms. Hardwell over to attempt to render aid to her, he did not see a
gun or any weapons on her. Mr. Jones recognized Gilbert because Gilbert
had lived with him for a brief period when Gilbert had “no place to go.” Mr.
Jones identified Gilbert in the courtroom as the same man he saw leaving the
scene of the crime that day.
Shirley testified that on September 23, 2021, Ms. Hardwell, whom she
referred to as “Bre,” entered her duplex apartment at 108 Linderman Avenue
and engaged in an altercation over five dollars she claimed Shirley owed her.
Shirley said that when she did not produce the money, Ms. Hardwell struck
her in the head. Shirley said she then called her sister, Sheila, who lived in
the other half of the duplex, for help, and the sisters forced Ms. Hardwell
from the house.
When Gilbert arrived, Shirley said she was at her doorway and Ms.
Hardwell was outside. Shirley said she then told her son that Ms. Hardwell
had hit her. Shirley stated that she and her other sister, Linda Preston, were
on a three-way call with 911, relaying information about how Ms. Hardwell
had struck her when Gilbert pulled out a gun and shot Ms. Hardwell three
times. The audio recording of the chaotic 911 call was admitted into
evidence and played for the jury. 4 Sheila lives next door to Shirley in the adjoining duplex apartment.
She testified that she was at her sister’s apartment when Ms. Hardwell
arrived and that Shirley and Ms. Hardwell began arguing over five dollars.
Sheila said that Ms. Hardwell was asked to leave Shirley’s apartment
because she was “knocking stuff over.” Gilbert then arrived. Sheila said
that Shirley conveyed to Gilbert that Ms. Hardwell had struck her “upside
the head.” After Sheila returned to her apartment, she said she heard
gunshots outside her door, and when she looked out her window, she saw
Gilbert with a gun and Ms. Hardwell on the ground.
Linda Preston is Gilbert’s aunt and was on the 911 call with Shirley
when Ms. Hardwell was shot. Ms. Preston testified that on September 23,
2021, she got a call from her sister, Shirley, informing her that Ms. Hardwell
had hit Shirley and “tore up her house.” Ms. Preston suggested that the two
of them call 911 to deal with the situation. Ms. Preston said she initially
called 911 before patching in Shirley for a three-way call. Ms. Preston said
that she and Shirley were on the 911 call with police when the shooting
occurred.
Dr. Frank Peretti is a forensic pathologist who performed an autopsy
on Ms. Hardwell. The parties stipulated that he is an expert in his field. Dr.
Peretti testified that Ms. Hardwell was 33 years old, 5'8", and 358 lbs. at the
time of her death. He concluded that her cause of death was homicide from
three gunshot wounds, one of which led to massive internal bleeding. Dr.
Peretti was shown numerous photographs of Ms. Hardwell, all of which he
confirmed were the same ones he took in connection with his autopsy. The
photographs were admitted into evidence. The state rested. Gilbert
5 exercised his right to remain silent and elected not to testify in his own
defense. The defense rested.
Following deliberation, the jury found Gilbert guilty as charged. The
jury was polled and the verdict was unanimous. On September 15, 2022, the
trial court sentenced Gilbert to life in prison without benefits. Notably, the
trial court did not use the term “hard labor” when sentencing Gilbert. On
September 23, 2022, a motion for appeal was filed, and on September 27,
2022, it was granted. This direct appeal followed.
DISCUSSION
Sufficiency of the Evidence
Gilbert asserts that the evidence was insufficient to convict him of
second-degree murder. Appellant does not dispute that he shot Ms.
Hardwell. However, he argues the evidence established that he committed
the offense in sudden passion or heat of blood, warranting the responsive
verdict of manslaughter.
Gilbert argues that the evidence established that Ms. Hardwell struck
Shirley and ransacked her belongings just before he arrived at his mother’s
home. Gilbert claims that he only shot Ms. Hardwell after he was told that
she struck his mother, and that after being told what had occurred, not
enough time had passed to allow his blood to cool.
Gilbert notes that Ms. Hardwell was a large woman, 5'8" and 358
pounds, compared to Shirley’s height of under 5' and weight of
approximately 100 pounds. Gilbert further notes that his mother had
obvious mental and/or emotional problems as evidenced by her inability to
call 911 and speak to the operator on her own, needing her sister to make the
three-way call, and the difficulty she had with recounting the events when 6 she testified. Gilbert asserts that these factors combined were sufficient to
enrage him and deprive him of his self-control and cool reflection such that
he should have been convicted of manslaughter rather than second-degree
murder. Gilbert requests that this court vacate his conviction and sentence.
The state argues that the evidence was more than sufficient to convict
Gilbert of second-degree murder. The state asserts that if Gilbert is allowed
reduced culpability in a homicide based on the fact that he was told the
victim hit his mother prior to his arrival, “it would make a mockery of the
cases in which the manslaughter statute should be applied.”
The state argues that even assuming Gilbert is accurate in saying that
the killing resulted from being told Ms. Hardwell struck his mother prior to
his arrival, that is still not sufficient grounds for a finding of manslaughter.
The state asserts that there was no act of violence or assault committed in
Gilbert’s presence and that his decision to shoot and kill Ms. Hardwell was
based on words. The state argues that those are not circumstances sufficient
to deprive an average person of self-control or cool reflection. The state
further argues that Gilbert’s intent to kill can be inferred from the fact that
he shot Ms. Hardwell three times.
When issues are raised on appeal contesting the sufficiency of the
evidence and alleging one or more trial errors, the reviewing court should
first determine the sufficiency of the evidence. State v. Hearold, 603 So. 2d
731 (La. 1992). The Louisiana Supreme Court has set forth the following
standard of review of the sufficiency of the evidence:
When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d. 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the 7 light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La. 6/29/01) 796 So. 2d 649, 657 (citing State v. Captville, 448 So. 2d 676, 678 (La. 1984)).
State v. Brown, 03-0897, p. 22 (La. 4/12/05), 907 So. 2d 1, 18, cert. denied,
547 U.S. 1022, 126 S. Ct. 1569, L. Ed. 2d 305 (2006).
Relevant to this case, second-degree murder is “the killing of a human
being ... [w]hen the offender has a specific intent to kill or to inflict great
bodily harm.” La. R.S. 14:30.1(A)(1). Specific intent is that state of mind
which exists when the circumstances indicate that the offender actively
desired the prescribed criminal consequences to follow his act or failure to
act. La. R.S. 14:10(1). Specific intent may be inferred from the
circumstances surrounding the offense and the conduct of the defendant.
State v. Bishop, 01-2548 (La. 1/14/03), 835 So. 2d 434. Specific intent to
kill may also be inferred from the extent and severity of the victim’s injuries.
State v. Bull, 53,470 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1175, writ denied,
20-00797 (La. 12/22/20), 307 So. 3d 1040.
La. R.S. 14:31(A)(1) states that manslaughter is:
A homicide which would be murder under ... Article 30.1 (second-degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed[.]
A defendant who claims provocation as a means of reducing murder
to manslaughter bears the burden of proving these elements by a
preponderance of the evidence. State v. McGee, 51,977 (La. App. 2 Cir.
4/3/19), 316 So. 3d 1196, writ denied, 19-00761 (La. 11/19/19), 282 So. 3d
8 1066. Provocation and the time for cooling are questions for the jury to
determine according to the standard of the average or ordinary person. Id.,
citing State v. Leger, 05-0011 (La. 7/10/06), 936 So. 2d 108, cert. denied,
549 U.S. 1221, 127 S. Ct. 1279, 167 L. Ed. 2d. 100 (2007).
“Sudden passion” and “heat of blood” which distinguish manslaughter
from homicide are not elements of the offense, but mitigatory factors
exhibiting a degree of culpability less than is present when the homicide is
committed without them. State v. Tompkins, 403 So. 2d 644 (La. 1981);
State v. Arnold, 30,282 (La. App. 2 Cir. 1/21/98), 706 So. 2d 578; State v.
Armstrong, 32,279 (La. App. 2 Cir. 9/22/99), 743 So. 2d 284, writ denied,
99-3151 (La. 4/7/00), 759 So. 2d 92. A defendant who shows by a
preponderance of the evidence that these mitigatory factors are present is
entitled to the verdict of manslaughter. State v. Lombard, 486 So. 2d 106
(La. 1986). However, the defendant is not obligated to establish the factors
affirmatively; instead, the jury may infer them from the overall evidence
presented. State v. Jackson, 34,076 (La. App. 2 Cir. 12/6/00), 774 So. 2d
1046. The reviewing court’s function is to determine whether a rational trier
of fact, viewing the evidence in the light most favorable to the state, could
have found that the mitigatory factors were not established by a
preponderance of the evidence. State v. Lombard, supra.
Provocative acts held to rise to the level of mitigating conduct involve
physical threats or actions on the part of the victim. State v. Heard, 22-378
(La. App. 3 Cir. 11/23/22), 353 So. 3d 326, writ denied, 22-01829 (La.
4/18/23), 359 So. 3d 508. Mere words or gestures, however offensive or
insulting, will not reduce homicide from murder to manslaughter. State v.
9 Mitchell, 39,202 (La. App. 2 Cir. 12/15/04), 889 So. 2d 1257, writ denied,
05-0132 (La. 4/29/05), 901 So. 2d 1063.
Viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found beyond a reasonable doubt that the
state proved the essential elements of second-degree murder. The state
presented sufficient evidence to prove that Gilbert killed Ms. Hardwell when
he had a specific intent to kill or to inflict great bodily harm. Gilbert shot
Ms. Hardwell three times before fleeing the scene of the crime.
Furthermore, any rational trier of fact could have found that the
mitigatory factors of “sudden passion” and “heat of blood” were not
established by a preponderance of the evidence. Gilbert’s claim that words
were not what caused him to kill Ms. Hardwell is belied by the fact that
Gilbert was told, using words, that Ms. Hardwell hit his mother prior to his
arrival. Gilbert did not see anyone strike his mother, because he was not
present when the alleged strike occurred. Instead, Gilbert was informed that
his mother was struck before he arrived. No act of violence or assault was
committed in Gilbert’s presence. His decision to shoot and kill Ms.
Hardwell was, in fact, based on words.
This court is not convinced that these were circumstances sufficient to
deprive an ordinary person of their self-control or cool reflection such that
Gilbert should have been convicted of manslaughter rather than second-
degree murder. Accordingly, Gilbert’s first assignment of error is without
merit.
Sanity Commission
In Gilbert’s second assignment of error, he argues that the trial court
erred in denying his request for a sanity commission. Gilbert claims that the 10 trial court confused the standard for adjudicating competency with the
standard for ordering the competency hearing. To receive a competency
hearing, Gilbert argues that he needed only to present evidence to cause the
judge to have reasonable doubt about his competency. Gilbert alleges that
since he was able to show prison and hospital medical records revealing
schizophrenia, the trial court should have been alerted to the possibility that
he was incompetent and ordered a competency hearing.
Gilbert argues that psychiatric professionals are in the best position to
evaluate his competency. Gilbert asserts that this is particularly true in light
of his own mental history, the fact that he was not on his medication, and as
his trial lawyer noted, displayed delusional aspects in some of his
conversations. Gilbert further noted that his trial lawyer requested a
competency hearing because Gilbert seemed unable to assist him with the
case. For those reasons, Gilbert argues that the trial court abused its
discretion in failing to grant the competency hearing.
The state argues that the trial court correctly denied his motion and
that there are no grounds to disturb the trial court’s exercise of discretion.
The state points out that at the hearing on Gilbert’s motion to appoint a
sanity commission, Gilbert’s own witness, Mr. Dickens, testified about how
Gilbert clearly understood the charges against him and the penalty if found
guilty.
The state also notes that the only evidence offered to support the claim
that Gilbert suffered from schizophrenia was unsubstantiated statements
made by Gilbert himself. The state asserts that no evidence was offered to
show that there had ever been a diagnosis made by a doctor, nor was any
11 evidence offered to indicate that schizophrenia had negatively impacted
Gilbert’s cognitive abilities at any point in his past.
Finally, the state points to the evidence it produced at the hearing on
the motion to appoint a sanity commission: several recordings taken from
the OCC of phone calls made by Gilbert. The state argues that from these
recordings, the trial court was able to clearly determine that Gilbert had the
capacity to proceed with his trial and assist his counsel in his own defense.
The Fourteenth Amendment’s Due Process Clause protects an
individual’s right not to proceed to trial while legally incompetent. See
Medina v. California, 505 U.S. 437, 112 S. Ct. 2572, 120 L. Ed. 2d 353
(1992). Pursuant to La. C. Cr. P. art. 643, a court shall order a mental
examination of a defendant and appoint a sanity commission when it “has
reasonable ground to doubt the defendant’s mental capacity to proceed.”
“Reasonable ground” refers “to information which, objectively considered,
should reasonably raise a doubt about the defendant’s competency and alert
the court to the possibility that the defendant can neither understand the
proceedings, appreciate the proceedings’ significance, nor rationally aid his
attorney in his defense.” State v. Anderson, 06-2987 (La. 9/9/08), 996 So.
2d 973, 992, cert. denied, 556 U.S. 1165, 129 S. Ct. 1906, 173 L. Ed. 2d
1057 (2009).
The trial court’s decision regarding a defendant’s competency to stand
trial should not turn solely upon whether he suffers from a mental disease or
defect, but must be made with specific reference to the nature of the charge,
the complexity of the case, and the gravity of the decision with which the
defendant is faced. A judicial examination of a defendant’s competency
focuses primarily on whether a defendant understands the nature of the 12 charge and can appreciate its seriousness. State v. Odenbaugh, 10-0268 (La.
12/6/11), 82 So. 3d 215, cert. denied, 568 U.S. 829, 133 S. Ct. 410, 184 L.
Ed. 2d 51 (2012).
In the exercise of its discretion, the trial court may consider both lay
and expert testimony when deciding whether reasonable grounds exist for
evaluating a defendant’s competency. Id. at p. 8, 228. An appellate court
owes the trial court’s determinations as to the defendant’s competency great
weight, and the trial court’s ruling thereon will not be disturbed on appeal
absent a clear abuse of discretion. Id. The appointment of a sanity
commission is not a perfunctory matter or a ministerial duty of the trial
court, and is not guaranteed to every accused in every case. Id. Even the
fact that a defendant’s capacity to proceed is called into question by formal
motion does not, for that reason alone, require an order for a mental
examination. Id. “The ordering of a mental examination as to the
defendant’s present capacity to proceed rests in the sound discretion of the
court. It is not enough that the defense has filed a motion urging the
defense, but there must be sufficient evidence to raise a reasonable doubt as
to such capacity.” Id.; La. C. Cr. P. art. 643, Off. Rev. Cmt. (a).
The proper considerations to determine whether a criminal defendant
is fully aware of the nature of the proceedings against him include whether
he: (1) understands the nature of the charge and can appreciate its
seriousness; (2) understands what defenses are available; (3) can distinguish
a guilty plea from a not guilty plea and understand the consequences of each;
(4) has an awareness of his legal rights; and (5) understands the range of
possible verdicts and the consequences of conviction. State v. Bryant,
52,743 (La. App. 2 Cir. 6/26/19), 277 So. 3d 874, writ denied, 19-01320 (La. 13 10/8/19), 280 So. 3d 171. All of these factors were considered by the trial
court before it declined to appoint a sanity commission. The trial court even
went into detail as to each factor and explained its reasoning for the decision
on each of them.
The trial court noted that Gilbert’s claim of schizophrenia was not
supported by any actual diagnosis in the medical records. The trial court
also based its decision on the recordings of multiple phone calls made by
Gilbert to witnesses wherein Gilbert threatened action against them if they
did not testify according to his wishes. The trial court found that Gilbert’s
behavior in this regard evidenced his ability to understand the nature of the
charge against him and appreciate its seriousness. We find no abuse of
discretion in the trial court’s denial of the motion to appoint a sanity
Errors Patent
In accordance with La. C. Cr. P. art. 920, all appeals are reviewed for
errors patent on the face of the record. La. C. Cr. P. art. 879 requires a court
to impose a determinate sentence. If the applicable sentencing statute allows
discretion, the failure to indicate whether the sentence is to be served at
“hard labor” is an impermissible indeterminate sentence. State v. Norman,
05-794 (La. App. 5 Cir. 3/14/06), 926 So. 2d 657, writ denied, 06-1366 (La.
1/12/07), 948 So. 2d 145.
Gilbert was sentenced pursuant to the second-degree murder statute,
La. R.S. 14:30.1, which mandates the sentence be at hard labor.
Because the statute mandates hard labor and there is no discretion
allowed, the trial judge’s failure to state that this sentence was to be at hard
labor is harmless error and no corrective action is required. 14 CONCLUSION
For the foregoing reasons, the conviction and sentence of defendant,
Richard L. Gilbert, are affirmed. In order to clarify the sentence, we rule
that it is to be served at hard labor.
AFFIRMED.