State of Louisiana v. Robert Leroy McCoy
Opinions
HUGHES, J.
|, This is a direct appeal under LSA-Const. Art. Y, § 5(D)1 by the defendant, Robert LeRoy McCoy. The defendant was indicted by a Caddo Parish grand jury, on May 29, 2008, on three counts of first degree murder, for the murders of Willie Ray Young, Christine Colston Young, and Gregory Lee Colston, in violation of LSÁ-R.S. 14:30. After a trial, the jury found the defendant guilty as charged on all three counts. At the conclusion of the penalty phase of thé trial, the jury unanimously returned a verdict of death on all three counts, finding the aggravating- circumstance that the defendant knowingly created a risk of death or great bodily harm to more than one person. The trial court sentenced the defendant to death, in accordance with the jury’s determination. The defendant now appeals his convictions and sentences, raising sixteen assignments of error. After a thorough review of the law and the evidence, we find no merit in any of the assignments of |gerror. Therefore, we affirm the defendant’s convictions and sentences.
FACTS AND PROCEDURAL HISTORY
Christine Colston Young and her husband, Willie Ray Young, were shot and killed at their home at 19 Grace Lane in Bossier City, Louisiana, on May 5, 2008; Christine’s grandson, Gregory Lee Col-ston, was also shot and later died. Gregory had recently come to live with his grandparents so that he could finish his senior year at a local high school, after his mother, Yolanda Colston, had separated from the defendant earlier in the Spriiig of 2008 and following an incident of domestic abuse battery in April 2008.2 On advice of law enforcement, Yolanda and her infant daughter had gone into protective custody out-of-state, and a warrant was issued, on April 16, 2008, for the defendant’s arrest for aggravated battery, by Detective Kevin Humphrey. In April and May, the defendant had evaded arrest under the warrant by failing to show up for work at his place of employment. The defendant had also traveled to Oakland, California; where his half-brother resided, but his cell phone records indicated that he returned to Bossier City on or about May 4, 2008, as calls were initiated from the defendant’s cell phone in Bossier and Caddo Parishes on the day of, and the day after, the murders.
On the night of May 5, 2008 a 911 call was placed from 19 Grace Lane, in which [542] Christine Colston Young could be heard screaming, “She ain’t here, Robert ... I don’t know where she is. The detectives have her. Talk to the detectives. She ain’t in there, Robert.” A gunshot was then heard on the 911 tape and the call was disconnected.
The Bossier City Police Department (“BCPD”) broadcast that a disengaged 911 call came from 19 Grace Lane, which was heard by Detective Humphrey, who immediately recognized the address as the residence of Yolanda Colston’s parents. laHowever, Detective Humphrey was working a security detail at a local store, and so he notified the first responders, via police radio, that he had an arrest warrant for Robert McCoy, whose estranged wife’s mother resided at 19 Grace Lane. Detective Humphrey cautioned the first responders to be on the lookout for a white four-door Kia, which he believed was driven by Robert McCoy.
Officer Kary Szyska responded that he was in the vicinity, approaching 19 Grace Lane, and that he saw a white Kia fleeing from the scene, which was recorded on the officer’s dashboard video camera. Officer Szyska made a U-turn and gave chase. On a dead-end street within a few blocks of the victims’ home, the video showed a black male matching the defendant’s general physical description jump out of the driver’s side of the Kia, scale a nearby fence, and run across 1-20.
Meanwhile, Detective Humphrey called the victims’ home and, receiving no answer, he drove there, arriving with other officers to find the front door ajar. Upon entering, the officers discovered fifty-five-year-old Christine Colston Young and fifty-year-old Willie Young, who was a cousin of the defendant, dead at the scene. Seventeen-year-old Gregory Colston was found gravely injured, but alive, and he was transported to the hospital, where he died a short time later. All three victims suffered a single gunshot wound to the head, fired from close range.
Since the abandoned Kia had a temporary license plate, the police ran the VIN (vehicle identification number) and found that it was registered to Robert and Yolanda McCoy. The police impounded the vehicle and searched the interior. There was a white cordless (landline) telephone on the driver’s seat, and the charger/cradle for the cordless handset was found inside the victims’ residence. The serial and model numbers on the handset found in the defendant’s Kia matched that on charger/cradle found in the victims’ home, confirming that the phone used by Christine Colston Young to call 911 was the phone found in the Ldefendant’s abandoned vehicle immediately after the murders.
Also found in the center console of the abandoned Kia was a Walmart bag with a box of .380 caliber ammunition. Inside the Walmart bag was a cash receipt from earlier that same day (at 16:55, or 4:55 p.m., on May 5, 2008), for the purchase of the ammunition. The police obtained video surveillance footage from Walmart, generated at the time of the purchase on the receipt, which showed an individual matching the defendant’s physical description pm-chasing ammunition while wearing a black “do-rag” on this head.3
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HUGHES, J.
|, This is a direct appeal under LSA-Const. Art. Y, § 5(D)1 by the defendant, Robert LeRoy McCoy. The defendant was indicted by a Caddo Parish grand jury, on May 29, 2008, on three counts of first degree murder, for the murders of Willie Ray Young, Christine Colston Young, and Gregory Lee Colston, in violation of LSÁ-R.S. 14:30. After a trial, the jury found the defendant guilty as charged on all three counts. At the conclusion of the penalty phase of thé trial, the jury unanimously returned a verdict of death on all three counts, finding the aggravating- circumstance that the defendant knowingly created a risk of death or great bodily harm to more than one person. The trial court sentenced the defendant to death, in accordance with the jury’s determination. The defendant now appeals his convictions and sentences, raising sixteen assignments of error. After a thorough review of the law and the evidence, we find no merit in any of the assignments of |gerror. Therefore, we affirm the defendant’s convictions and sentences.
FACTS AND PROCEDURAL HISTORY
Christine Colston Young and her husband, Willie Ray Young, were shot and killed at their home at 19 Grace Lane in Bossier City, Louisiana, on May 5, 2008; Christine’s grandson, Gregory Lee Col-ston, was also shot and later died. Gregory had recently come to live with his grandparents so that he could finish his senior year at a local high school, after his mother, Yolanda Colston, had separated from the defendant earlier in the Spriiig of 2008 and following an incident of domestic abuse battery in April 2008.2 On advice of law enforcement, Yolanda and her infant daughter had gone into protective custody out-of-state, and a warrant was issued, on April 16, 2008, for the defendant’s arrest for aggravated battery, by Detective Kevin Humphrey. In April and May, the defendant had evaded arrest under the warrant by failing to show up for work at his place of employment. The defendant had also traveled to Oakland, California; where his half-brother resided, but his cell phone records indicated that he returned to Bossier City on or about May 4, 2008, as calls were initiated from the defendant’s cell phone in Bossier and Caddo Parishes on the day of, and the day after, the murders.
On the night of May 5, 2008 a 911 call was placed from 19 Grace Lane, in which [542] Christine Colston Young could be heard screaming, “She ain’t here, Robert ... I don’t know where she is. The detectives have her. Talk to the detectives. She ain’t in there, Robert.” A gunshot was then heard on the 911 tape and the call was disconnected.
The Bossier City Police Department (“BCPD”) broadcast that a disengaged 911 call came from 19 Grace Lane, which was heard by Detective Humphrey, who immediately recognized the address as the residence of Yolanda Colston’s parents. laHowever, Detective Humphrey was working a security detail at a local store, and so he notified the first responders, via police radio, that he had an arrest warrant for Robert McCoy, whose estranged wife’s mother resided at 19 Grace Lane. Detective Humphrey cautioned the first responders to be on the lookout for a white four-door Kia, which he believed was driven by Robert McCoy.
Officer Kary Szyska responded that he was in the vicinity, approaching 19 Grace Lane, and that he saw a white Kia fleeing from the scene, which was recorded on the officer’s dashboard video camera. Officer Szyska made a U-turn and gave chase. On a dead-end street within a few blocks of the victims’ home, the video showed a black male matching the defendant’s general physical description jump out of the driver’s side of the Kia, scale a nearby fence, and run across 1-20.
Meanwhile, Detective Humphrey called the victims’ home and, receiving no answer, he drove there, arriving with other officers to find the front door ajar. Upon entering, the officers discovered fifty-five-year-old Christine Colston Young and fifty-year-old Willie Young, who was a cousin of the defendant, dead at the scene. Seventeen-year-old Gregory Colston was found gravely injured, but alive, and he was transported to the hospital, where he died a short time later. All three victims suffered a single gunshot wound to the head, fired from close range.
Since the abandoned Kia had a temporary license plate, the police ran the VIN (vehicle identification number) and found that it was registered to Robert and Yolanda McCoy. The police impounded the vehicle and searched the interior. There was a white cordless (landline) telephone on the driver’s seat, and the charger/cradle for the cordless handset was found inside the victims’ residence. The serial and model numbers on the handset found in the defendant’s Kia matched that on charger/cradle found in the victims’ home, confirming that the phone used by Christine Colston Young to call 911 was the phone found in the Ldefendant’s abandoned vehicle immediately after the murders.
Also found in the center console of the abandoned Kia was a Walmart bag with a box of .380 caliber ammunition. Inside the Walmart bag was a cash receipt from earlier that same day (at 16:55, or 4:55 p.m., on May 5, 2008), for the purchase of the ammunition. The police obtained video surveillance footage from Walmart, generated at the time of the purchase on the receipt, which showed an individual matching the defendant’s physical description pm-chasing ammunition while wearing a black “do-rag” on this head.3
A manhunt began for the defendant involving the BCPD, the U.S. Marshall’s Office, and the FBI. The police began with [543] the defendant’s cell phone records.4 They noticed he had been repeatedly calling a number in Oakland, California. Detective Humphrey testified that the last ping on the cell phone being used by the defendant occurred in Port Smith, Arkansas, and then the phone went dead. At that point, the police subpoenaed the phone records for the Oakland number the defendant had been calling, and as soon as the defendant’s phone was no longer being used, an Arkansas cell phone began calling the Oakland number. The police called the Arkansas cell phone number and a truck driver answered.5 The police asked the truck driver if a black male named Robert was riding in the eighteen-wheeler with him. The driver replied, “[H]e was, but he’s not now,” | ¿relating that Robert had gotten into another eighteen-wheeler, which had been directly behind him at a weigh station in Spokane, Washington. The Arkansas truck driver told the police that he had picked Robert up in East Texas,6 and Robert had borrowed his cell phone to make some calls after the battery went dead on his phone. The Arkansas truck driver disclosed that he and the second truck driver, with whom the defendant thereafter hitched a ride, had been issued tickets at the Spokane weigh station. The police contacted the weigh station and learned that the truck the defendant was traveling in was a Swift Transportation eighteen-wheeler. The police contacted Swift Transportation and learned that the eighteen-wheeler in which the defendant was traveling was bound for Oakland, California. Through GPS tracking, they located the Swift truck in Lewiston, Idaho, where it was making a warehouse pick-up.
The BCPD communicated to the Lewi-ston Police Department (“LPD”) that a murder suspect was a passenger in a Swift eighteen-wheeler in their jurisdiction and gave the location. On May 9, 2008 the LPD stopped the eighteen-wheeler in Lewiston, Idaho, and they arrested the defendant.7 The defendant and the truck driver were the only occupants of the eighteen-wheeler, and the driver was not suspected of, or charged with, any crimes. The police searched the eighteen-wheeler, and found [544] a loaded, silver handgun on the floorboard behind the passenger seat where the defendant had been seated. The weapon was not in aJjjholster or bag, and the safety was not on.8 The truck driver denied having a gun or any knowledge of a gun being in his truck. The LPD also seized from the defendant a cell phone and his wallet, which contained a pay stub, a birth certificate, a social security card, identification cards, insurance cards, and credit cards, all in the name of Robert McCoy, though the defendant had given the name of “Vance McCoy.”
On May 12, 2008, while awaiting extradition to Louisiana, the defendant unsuccessfully tried to hang himself with a bed sheet. The defendant was returned to Louisiana on May 14, 2008.
On May 15, 2008 the defendant appeared, by video, at a 72-hour hearing, and the court appointed the Indigent Defender Board to represent him. On May 29, 2008 a Bossier Parish grand jury indicted the defendant for the May 5, 2008 first degree murders of Christine Colston Young, Willie Ray Young, and Gregory Lee Colston, alleging in each instance a violation of LSA-R.S. 14:30(A)(3) (murder when “the offender has a specific intent to kill or to inflict great bodily harm upon more than one person”). On June 17, 2008 the defendant entered a plea of not guilty to the charges at the formal arraignment.
On July 1, 2008 the State gave its notice of intent to seek the death penalty against the defendant. Thereafter, the defense moved for the appointment of a sanity commission to evaluate the defendant’s mental capacity to understand the proceedings against him and to assist in his defense. The trial court ordered Dr. Richard Williams, a psychiatrist, and Dr. Mark Vigen, a clinical psychologist, to examine the defendant, which they did and by agreement submitted their findings |7by report to the court. At a hearing held on November 14, 2008 the trial court noted that both experts found the defendant competent to stand trial.9
Thereafter, both the State and the defense filed motions for discovery and inspection, and the defendant filed a variety of pro se motions into the record, including subpoena requests for a number of witnesses.10 The State filed motions to quash the defendant’s pro se subpoena requests, asserting that the testimony of the individ[545] uals, sought by the defendant to be subpoenaed, had no evidentiary value or relevance to contribute to the case and that the defendant’s actions were “meant to harass and unduly delay this matter.”
On December 6, 2009 the defendant wrote to the trial court advising that a conflict of interest had arisen between him and the public defender’s office, and he sought to represent himself until additional counsel could be retained and enrolled.11 On January 12, 2010 the trial court held a hearing, initially slated to address the motion to quash subpoenas, but after the defendant announced to the court that he had a conflict of interest with the public defender’s office and that his |sfamily would be hiring an attorney, the trial judge recessed the hearing until the counsel issue could be resolved.
On February 11, 2010 after the trial judge gave the defendant a full recitation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant waived those rights and asserted his right to represent himself under Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). After interrogating the defendant, the trial judge ascertained that the defendant merely sought to represent himself “until my [retained] counsel enrolls next month.” The defendant assured the judge that even if counsel did not enroll, he would still be prepared to-go to trial on the previously set date of May 24, 2010.
On March 1, 2010 Larry English filed a motion to enroll as counsel for the defendant, and Mr. English appeared in open court two days later to formally enroll. Mr. English admitted- to the court that he was not certified to try death penalty bases but that he had made calls to board certified lawyers in order to assemble a legal team to try the case. The trial judge informed the defendant that his new attorney was not certified in death penalty eases,, and the defendant acknowledged that he understood that and. still wished to go forward with Mr. English as his attorney. Then Mr. English filed a motion to continue the trial, which the judge denied because the defendant had filed a pro se motion for speedy trial on January 13, 2010 and the case had already been set for trial at least once before. Thereafter, the trial judge relieved the public defender’s office from its representation of the defendant.
On April 16, 2010 Mr. English -took- -a writ to the Second Circuit on the trial court’s denial of his motion to continue. While that writ application was pending, the trial court held an additional hearing, on April 23, 2010, on the defendant’s.motion to continue, at which time-Mr. English reported that he was “having trouble 19.., putting together a legal team .to represent [546] Mr. McCoy because nobody wants to step into a capital murder ease that they’ve got to go- to trial on within such a short period .... I’m still not up to speed or nearly ready to undertake the representation of Mr. McCoy.” After the defendant and counsel assured the trial judge that they were withdrawing the defendant’s speedy trial motion, the judge reset the trial date to February 7, 2011, which he deemed “a hard ... date.” The trial judge also warned counsel: “Mr. English, I want you to understand that if I grant this continuance you will not be allowed to withdraw.” Subsequently, the Second Circuit noted that the trial court had granted the defendant’s motion to continue, and the writ was withdrawn. See State v. McCoy, 45,623 (La. App. 2 Cir. 5/20/10).
On March 12, 2010 the State filed its notice of intent to use evidence of other acts and/or crimes at trial, pursuant to LSA-C.Cr.P. art. 720 and LSA-C.E. art. 404(B). Specifically, the State’s notice covered “[a]U evidence from the criminal investigation of the incident that occurred on or about the 2nd day of April, 2008 concerning Yolanda Colston.” The defense responded by filing a motion in limine to exclude “any prior bad acts” of the defendant from trial. The parties argued the motions before the court on November 16, 2010, with the State urging that the issue of the defendant’s aggravated battery against Yolanda Colston constituted res gestae because “that’s what caused [the defendant] to come into contact with these victims on that particular night.” The trial judge agreed and granted the State’s motion to admit other crimes evidence. The defense counsel noticed his intent to seek writs, which were subsequently denied by the appellate court “on the showing made.” See State v. McCoy, 46,266 (La. App. 2 Cir. 1/6/11) (unpublished).
On December 14, 2010 Mr. English filed a motion requesting the trial court to declare the defendant indigent, for purposes of obtaining funds through the | inLouisiana Public Defender Board, so that the defense could hire a mitigation expert and investigator, a social worker, and a mental health expert, which was heard by the trial court on January 4, 2011. Mr. English disclosed to the court that mitigation experts were necessary should there be a guilty verdict in the case, but the defendant disagreed with that defense strategy. Mr. English further informed the court that the defendant had directed him not to proceed with the motion to declare him indigent, but Mr. English stated that to follow the defendant’s directive would not be in the defendant’s best interest, opining that his client was suffering from “severe mental and emotional issues that ha[ve] an impact upon this case.” Mr. English asked the trial court to “order that Mr. McCoy submit to the experts that are required in a capital murder case.”
In addition, numerous motions filed by the defendant, pro se, were addressed during the January 4, 2011 hearing, concerning which Mr. English stated: “I do not adopt those motions. I’ve asked [the defendant] not to file those motions .... I do not believe it’s in his best interest to do so .... [T]here may be some statements or documents in there that I believe ... may be detrimental to his case given the overwhelming ... evidence that is against him.” Mr. English also indicated that he was satisfied with the discovery response by the State, which he said had “provided us with all of the evidence in this case.” The district attorney confirmed that the State had given “open file” discovery to the defense. At the conclusion of the hearing, the defendant acquiesced in withdrawing his various pro se motions.
[547] Thereafter, the State realized that declaring the defendant indigent triggered Rules of the Supreme Court of Louisiana, Rule XXXI (“In any capital case in which a defendant is found to be indigent, the court shall appoint no less than two attorneys to represent the defendant ....”) and that since Mr. English’s enrollment | nthere had been only one attorney representing the defendant.12 Accordingly, on January 24, 2011, the State filed a “Motion to Determine Waiver of Co-Counsel,” requesting a contradictory hearing “to determine defendant’s waiver of co-counsel at defendant’s capital murder trial.” On that same day, the trial court held a hearing on the motion, during which the district attorney stated that he filed the motion to “get Mr. English and/or Mr. McCoy’s position.” Mr. English advised the court that although another attorney, James Gray, had been advising him about the case, neither Mr. Gray nor any other attorney would be participating in the trial of the case, and he was comfortable trying the case single-handedly.13 The trial judge questioned the defendant about the issue, and the defendant informed the court that, even though Mr. English was not capital certified, he waived the Rule XXXI two-attorney representation standard because he did not want to have the public defender’s office reappointed to his case. Also during the January 24, 2011 hearing, Mr. English orally requested a continuance of the February 7, 2011 trial date to further develop mitigation evidence. The trial court denied the defense motion to continue the trial date, and the defense thereafter filed an application for review with the appellate court.
Initially, the appellate court denied the writ application because the defense “failed to provide this Court with any documentation that the motion to continue was ever filed or ruled upon by the trial court.” State v. McCoy, 46,387 (La. App. 2 Cir. 2/1/11) (unpublished). However, on the following day, the appellate court issued a stay of the proceedings and, thereafter, issued a ruling granting the writ, lifting the stay, and remanding the case with instructions. State v. McCoy, 46,387 (La. App. 2 Cir. 2/2/11) (unpublished); State v. McCoy, 46,394 (La. App. 2 Cir. 2/3/11) (unpublished). In its ruling, the appellate court expressed concern that the defendant was proceeding to trial with only one defense attorney, who was not certified as qualified to defend capital cases. Id., 46,394 at p. 2. The appellate court granted the writ and remanded the case back to the trial court to grant the defendant a continuance of the trial date,14 directing the trial court to also “ensure that Mr. McCoy is, or has been, fully apprised on the record of the benefits of having two capital-defense qualified attorneys and that McCoy has [548] knowingly and intelligently waived same.” Id., 46,394 at p. 3.
In response to the 'appellate court’s February 3, 2011 ruling, the State immediately filed a “Motion to Appoint Additional'Counsel,” and, on the same day, the trial court held a hearing on the motion to address the concerns voiced by the appellate court. In addition to the district attorney arid defense counsel of record; a representative from the local public defender’s office, Randall Fish, was present at the February 3, 2011 trial court hearing, during which the court and the parties discussed whether the defendant could continue to be represented by retained counsel and also be entitled to the appointment of two capital-qualified attorneys through the public defender’s office. The defendant unequivocally declined assistance from the public defender’s office, stating: “I don’t want the Court to put counsel on me ... that I don’t want.” The trial judge and the district attorney questioned1 the defendant as to- his waiver of counsel under Rule XXXI, and the defendant affirmed that he voluntarily waived the public defender’s office being appointed as co-counsel in his case. The defendant'stated that he was 113“totaIly opposed to that and most of all ... I choose not to be strong armed to take a public defender’s aspect of secondary counsel when that’s totally against my wishes.” Based on the defendant’s repeated assurances that he was knowingly and voluntarily waiving the appointment of additional counsel, the trial judge denied the State’s motion for appointment of a second trial counsel, and a trial date of July 28, 2011 was set.
On July 12, 2011 the trial court held a hearing to address the State’s motion for discovery, which requested written notice from the defendant of his intention to offer a defense of alibi, and the State’s motion to quash various subpoena requests issued by the defendant in proper person. As to the former, Mr. English informed the court that “[w]e have no alibi evidence in this case,” notwithstanding the defendant’s pro se notice of intent to offer an alibi. As to the defendant’s pro se subpoena requests, the State asserted they were not in proper form, and Mr. English replied, “I do not adopt any of the. subpoenas that Mr. McCoy has filed. He has done that against my advice.” The trial court did not quash the pro se subpoenas on that date, but reserved his decision until a later date.
■On July 26, 2011 two days before the trial was slated to begin, the court held a hearing in which Mr. English reported that he learned over the weekend of the defendant’s “intention to terminate my services.” After the trial judge fully advised the defendant of his rights under Miranda, the defendant disclosed that Mr. English would not be his lawyer going forward. The trial judge informed the defendant, "[Tjhat’s my determination at this point,” The defendant claimed that his parents had retained two new attorneys, although those attorneys were not in court at the July 26th hearing. The defendant asserted that Mr. English has been “trying to ... make me cop out to three counts of first degree murder. Didn’t want me to go to trial.” Mr. English informed the court that he and the defendant had an irrevocable disagreement as to the trial strategy. Relying on State v. Bridgewater, the trial judge denied the defendant’s motion to substitute counsel as untimely, given that the lawyers the defendant was seeking to enroll were not present in court that day and trial was slated to commence in two days. See State v. Bridgewater, 00-1529 (La. 1/15/02), 823 So.2d 877, on rehearing, 00-1529 (La. 6/21/02), 823 So.2d 877, 909, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003), Accordingly, the trial judge ordered Mr. En[549] glish to remain counsel of record.- Moments after the trial court’s ruling that the defendant’s request to discharge counsel was untimely, the defendant made a one-sentence invocation of his right to self-represent, which the court disposed of as untimely under State v. Bridgewater.
Voir dire commenced on July 28, 2011, and jury selection of twelve jurors and two alternate jurors was completed on August 2, 2011. Trial on the merits commenced on August 3, 2011, and the State gave its opening statement. Thereafter, Mr. English gave an opening statement in which he conceded guilt, stating, “I’m telling you Mr. McCoy committed these crimes,” but he asserted that the defendant was suffering “from serious emotional issues” that inhibit his ability “to function in society and to make rational decisions.” Accordingly, Mr. English urged the jury to consider this case in terms of a second degree murder trial.
The State presented its case through the testimony of eleven witnesses and 100 exhibits before resting its case-in-chief. On August 4, 2011 Mr. English announced to the court that, against the advice of counsel and warnings of a possible perjury indictment, the defendant had elected to testify. The trial judge advised the defendant of his rights under Miranda, and the defendant acknowledged that he understood those rights and wished to testify. Thereafter, the defendant testified to his alibi defense and sought to refute the State’s evidence liSwith his theories of a vast conspiracy that landed him on trial for his life.15 The district attorney cross-examined the defendant, after which the de[550] fense rested its case. After deliberations on August 4, 2011, the jury returned a unanimous verdict of guilty as charged on all three counts.
The penalty phase was held on August 5, 2011. The State called five victim impact witnesses: (1) Yolanda Colston (mother of victim Gregory Colston, and daughter/step-daughter of victims Christine Col-ston Young and Willie Young); (2) Lorenzo Evans (friend of Gregory Colston); (3) Kent Falting (teacher and coach of Gregory Colston); (4) Eric Davis (son of Christine Colston Young); and (5) Pauline Miles (sister of Willie Young). Thereafter, the defense called one mitigation expert, Dr. Mark Vigen.16 After deliberation, the jury returned a verdict | ^recommending the sentence of death on all three counts, finding that the State proved one of the three aggravating circumstances advanced,17 namely that the offender knowingly created risk of death or great bodily harm to more than one person.
On December 6, 2011 attorneys from the Louisiana .Capital Assistance Center appeared before the trial court and filed a motion for new trial and a motion in arrest of judgment on the defendant’s behalf. Appellate counsel filed a supplemental motion for new trial on January 17, 2012. The trial court held a hearing on the defendant’s post-verdict motions on January 23, 2012, and at the conclusion, denied the motion for new trial. The defendant waived delays, and the trial court formally imposed the sentence of death in accordance with the jury’s verdict.
On August 8, 2012 appellate counsel filed a “Second Motion for New Trial.” The trial court subsequently ruled that the second motion for new trial was untimely filed. A writ application was denied by the appellate court “on the showing made.” State v. McCoy, 48,083 (La. App. 2 Cir. 1/17/13) (unpublished). This court also denied review. State v. McCoy, 13-0400 (La. 4/5/13), 110 So.3d 1067.
The defendant now appeals his convictions and death sentences on the basis of sixteen assignments of error: (1) the defendant’s right to counsel of choice was violated when the trial court denied his request to discharge and substitute trial counsel prior to trial; (2) the trial court erred in denying the defendant’s right to self-representation; (3) the trial court erred in failing to conduct a hearing and grant the defendant’s request for substitution of counsel on his showing that trial counsel [17was incompetent or otherwise unable to furnish adequate representation; (4) the trial court erred in ruling that trial counsel, rather than the defendant, could decide whether to concede guilt of murder; (5) the defendant’s right to counsel was denied when he was involuntarily represented by trial counsel who conceded his guilt against his express instructions and entirely failed to adversarially test the State’s ease; (6) the defendant’s right to conflict-free counsel was violated when his trial counsel actively represented interests contrary to the expressed interests and objectives of the defendant; (7) the defendant’s rights to compulsory process, to an [551] impartial jury trial, to plead not guilty, to present a defense, to confront witnesses, to require the State to prove guilt beyond a reasonable doubt, and to a fair trial were violated when trial counsel advocated his guilt of second degree murder; (8) the trial court erred in failing to appoint certified indigent counsel; (9) the trial court erred in denying the defendant’s motion to suppress the statement of Gayle Houston as untimely; (10) the State exercised peremptory challenges based on the race of prospective jurors in violation of state and federal equal protection clauses and LSA-C.Cr.P. art. 795; (11) the trial court erred in failing to give a “lesser-included offense” instruction; (12) the trial court erred in permitting “untested, unnoticed, unadjudicated act evidence” at the penalty phase, in violation of State v. Jackson, 608 So.2d 949 (La. 1992), the Eighth Amendment, and due process; (13) the trial court erred in admitting victim impact evidence from the basketball coach of one of the victims; (14) the trial court committed prejudicial error in refusing to allow the defendant to voluntarily excuse himself from being present at trial; (15) the trial court erred in dismissing the defendant’s “Second Motion for New Trial,” without reaching any of the merits, pursuant to an incorrect application of LSA-C.Cr.P. art. 853(B); and (16) the trial court erred in failing to hold a renewed competency hearing in violation of LSA-C.Cr.P. art. 643 and procedural due process. The defendant has urged no challenge to the sufficiency |1sof the evidence used to convict him of three counts of first degree murder.
LAW AND ANALYSIS
Right to Counsel of Choice
In his first assignment of error, the defendant contends that the trial court erred in denying his pretrial motion to discharge Mr. English as his trial counsel and to substitute another attorney as defense counsel, as the defendant contends a conflict arose between the defendant and Mr. English concerning the manner of trial defense to be presented.
The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.” An accused’s right to counsel is echoed in Louisiana Constitution, Article I, Section 13, which states that “[a]t each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.” See also LSA-C.Cr.P. art. 511 (“The accused in every instance has the right to defend himself and to have the assistance of counsel. His counsel shall have free access to him, in private, at reasonable hours.”).
The Supreme Court has recognized the efficacy of having the assistance of counsel during the adversarial procedure of a criminal trial. Wheat v. United States, 486 U.S. 153, 158-59, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988) (“[T]he Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime.”) (citing Gideon v. Wainwright, 372 U.S. 335, 343-44, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963)). Although “the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant,” the Sixth Amendment also encompasses “the right to select and be represented by one’s preferred attorney.” Wheat v. United States, 486 U.S. at 159, 108 S.Ct. at 1697.
| i9The denial of a criminal defendant’s right to retained counsel of choice is a violation of the Sixth Amendment and a structural error, requiring reversal. Unit[552] ed States v. Gonzalez-Lopez, 548 U.S. 140, 148-50, 126 S.Ct. 2557, 2564, 165 L.Ed.2d 409 (2006). When the right to be assisted by counsel of one’s choice is wrongly denied, no harmless error analysis inquiring into counsel’s effectiveness or prejudice to the defendant is required:
Deprivation of the right is “complete” when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice—which is the right to a particular lawyer regardless of comparative effectiveness—with the right to effective counsel—which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.
Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. at 2563.
The assistance of counsel may be secured in various ways, including: the hiring of an attorney’s services by the criminal defendant or by another on behalf of the defendant, the attorney’s volunteering of services pro bono, or the court’s appointment of private counsel or the public defender if the defendant is indigent.18 State v. Reeves, 06-2419, p. 35 (La. 5/5/09), 11 So.3d 1031, 1055, cert. denied, 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009). However, in order to exercise the right to choose a particular attorney, a defendant must have the means to obtain and afford the services of said counsel, whereas an indigent defendant has a right to “appointed” counsel, but does not have the right to have a particular attorney appointed. State v. Sims, 07-2216, p. 1 (La. 11/16/07), 968 So.2d 721, 722 (“A defendant is guaranteed the right to counsel of choice so long as the defendant can obtain and afford the services of said counsel.”); State v. Jones, 97-2593, pp. 2-3 (La. 3/4/98), 707 So.2d 975, 976; State v. Rideau, 278 So.2d 100, 103 (La. 1973) (“An indigent defendant is not entitled to choose a certain lawyer.”).19
The Sixth Amendment right to choose one’s own counsel is circumscribed in several important respects. Wheat v. United States, 486 U.S. at 159, 108 S.Ct. at 1697; State v. Reeves, 06-2419 at pp. 35-36, 11 So.3d at 1055-56. See also Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-26, 109 S.Ct. 2646, 2652-53, 105 L.Ed.2d 528 (1989). Regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients, other than himself, in court. Wheat v. United States, 486 U.S. at 159, 108 S.Ct. at 1697. Similarly, a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant. Id. Nor may a defendant insist on the counsel of an attorney who has a previous or ongoing relationship with an opposing party, even when the opposing party is the government. Id.
The Supreme Court has stated unequivocally that a criminal defendant who has been appointed counsel has no right under [553] the Sixth Amendment to the counsel of his choice:
The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. “[A] defendant may not insist on representation by an attorney he cannot afford.”
Caplin & Drysdale, 491 U.S. at 624, 109 S.Ct. at 2652 (quoting Wheat, 486 U.S. at 159, 108 S.Ct. at 1697). This distinction was again noted by the Supreme Court in United States v. Gonzalez-Lopez, 548 U.S. at 151, 126 S.Ct. at 2565, wherein | g1the Court held that “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them.”
A defendant’s right to choose his counsel only extends so far as to allow the accused to retain the attorney of his choice if he can manage to do so, but that right is not absolute. State v. Harper, 381 So.2d 468, 470-71 (La. 1980); State v. Leggett, 363 So.2d 434, 436 (La. 1978); State v. Mackie, 352 So.2d 1297, 1300 (La. 1977). See also Caplin & Drysdale, 491 U.S. at 626, 109 S.Ct. at 2652 (“Whatever the full extent of the Sixth Amendment’s protection of one’s right to retain counsel of his choosing, that protection does not go beyond ‘the individual’s right to spend his own money to obtain the advice and assistance of ... counsel,’ ”); State v. Brown, 03-0897, p. 11 (La. 4/12/05), 907 So.2d 1, 12, decision clarified on rehearing, 03-0897 (La. 6/29/05), 907 So.2d 1, 36, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006) (“[A] criminal defendant’s right to the counsel of his choice is not absolute.”).
Furthermore, this . court - has consistently held that a defendant’s right to counsel of his choice cannot be manipulated to obstruct the orderly procedure of the courts and cannot be,used to interfere with the fair administration of justice. State v. Bridgewater, 00-1529 at p. 20, 823 So.2d at 896; State v. Seiss, 428, So.2d 444, 447 (La. 1983); State v. Champion, 412 So.2d 1048, 1050 (La. 1982). See also State v. Givens, 99-3518, pp. 9-10 (La. 1/17/01), 776 So.2d 443, 452. The “[d]efen-dant must exercise his right to counsel of his choice at a reasonable s time, in a rea-, sonable manner[,] and- at an appropriate stage of the proceedings.”. State v. Seiss, 428 So.2d at 447. A trial court, therefore, does not abuse.its broad discretion to conduct proceedings “in an orderly and expeditious manner,” as mandated by LSA-C.Cr.P. art. 17, by denying a continuance on the morning of trial based on the defendant’s desire to change counsel. State v. Anthony, 347 So.2d 483, 487 (La. 1977) (“The law is well settled that, a defendant in a criminal 122trial caimot, by a last, minute change of counsel, force a postponement of his trial.”). .
The circumstances of State v. Seiss, supra, are analogous to the present case. In State v. Seiss, an indigent defender was appointed to represent the defendant, and on the day of trial the defense counsel presented a motion to withdraw so that the defendant could substitute another defense counsel. The indigent defender explained to the court why he-should be.allowed to withdraw from representation of the defendant:
Yesterday I. talked with Mr. Seissand he emphatically informed me that- he had no desire at all for me to represent him. It is my position that the. fiduciary relationship of attorney/client is., too valuable for me-to be forced to represent a client who has no confidence in my abilities, nor is he, willing to co[554] operate with me in any manner for me to represent him. Given that lack of rapport between us ... I don’t see how the amount of exposure that he has in this matter that I should be forced to represent him and I do not think that the administration of criminal justice in Rapides Parish would be so unduly burdened by allowing him, now that his indigency status has altered, he is employed and he is financially able to hire an attorney of his own choosing why he could not be allowed to so do and that’s basically my position.
State v. Seiss, 428 So.2d at 446. The defendant also informed the court of his reason for seeking to replace appointed counsel with retained counsel: “Like he said, you know, he was appointed to me as a State lawyer and now ... I [am] employed and I’d like to get a lawyer of my choice.” Id. Although the defendant claimed to have hired a replacement attorney, that attorney had not enrolled as counsel for the defendant and was not present on the day of trial; the trial court denied the motion to withdraw. Id. In ruling that the trial court did not abuse its discretion in denying defense counsel’s motion to withdraw, this court stated:
This court has consistently held that this right cannot be manipulated to obstruct the orderly procedure of the courts and cannot be used to interfere with the fair administration of justice. State v. Champion, 412 So.2d 1048, 1050 (La. 1982); State v. Johnson, 389 So.2d 1302, 1304 (La. 1980); State v. Jones, 376 So.2d 125, 129 (La. 1979); State v. Lee, 364 So.2d 1024, 1028 (La. 1978); State v. Anthony, 347 So.2d 483, 487 (La. 1977). Defendant must exercise laahis right to counsel of his choice at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings. State v. Champion, supra at 1050; State v. Johnson, supra at 1304; State v. Lee, supra at 1028; State v. Leggett, 363 So.2d 434, 436 (La. 1978); State v. Cousin, 307 So.2d 326, 328 (La. 1975). Absent a justifiable basis, “[tjhere is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications.” State v. Leggett, supra at 436. Once the trial date has arrived, the question of withdrawal of counsel largely rests with the discretion of the trial court, and his ruling will not be disturbed in the absence of a clear showing of abuse of discretion. State v. Leggett, supra at 436; State v. Cousin, supra at 328; State v. Boudoin, 257 La. 583, 588-89, 243 So.2d 265, 267 (1971).
State v. Seiss, 428 So.2d at 447. Likewise, in both State v. Lee, 364 So.2d at 1028, and State v. Anthony, 347 So.2d at 487, this court found no error in the trial court’s denial of a motion to withdraw, on the defendant’s claim that another retained counsel would be substituted, when the attorney to be substituted neither enrolled as counsel nor appeared in court on the day the motion was heard.
During the instant prosecution, the defendant was first represented by appointed counsel, then represented himself for approximately one month (as discussed hereinafter), and thereafter counsel was retained by the defendant’s family.
On May 15, 2008 at the defendant’s initial appearance before the court, he was referred to the public defender’s office, and on June 17, 2008, when he was arraigned, the defendant was represented by the public defender’s office. However, the defendant’s relationship with his appointed counsel soured when the defendant felt that no investigation was being done on his claims of innocence. In February of 2010 [555] the defendant declared that he would represent himself, but he qualified that he would be doing so only “until my [retained] counsel enrolls next month,” but assured the court that whether new counsel enrolled or not he would still be prepared for previously-set trial date of May 24, 2010.
On March 1, 2010 retained counsel Larry English enrolled as defense ^counsel and informed the court that while the defendant’s family “approached me ... about retaining my services ... I’m basically handling this case pro bono.”20 On January 4, 2011, on motion of Mr. English, the trial court declared the defendant indigent, so that he could apply for state funding to hire mitigation experts. Nevertheless, Mr. English proceeded as either retained or pro bono counsel.
When Mr. English enrolled as defense counsel on March 1, 2010, he assured the trial court that he had begun to assemble a “legal team ... to try this case” since he was not a certified capital counsel, but he sought a continuance of the May 24, 2010 trial date. In denying the motion for continuance, the trial court extensively detailed the delays that had already been encountered in bringing the case to trial, which had been originally set for June 1, 2009, noting the fact that the defendant had previously filed a pro se motion for speedy trial on January 13, 2010. However, an application for writs was filed with the appellate court, and subsequently the trial court agreed to continue the May 2010 trial date to February 7, 2011, on the defendant’s agreement to withdraw his motion for speedy trial and on Mr. English’s assurance that he would not thereafter withdraw as defense counsel.
At a hearing held before the trial court on July 26, 2011, two days before the commencement of the defendant’s capital trial, Mr. English stated to the court that |2Bhe had learned over the weekend that the defendant wanted to terminate him as defense counsel. The defendant confirmed this statement, telling the trial court that Mr. English would not be continuing as his attorney. The trial court informed the defendant, “[T]hat’s my determination at this point.” The defendant then stated that Mr. English had been paid a fee, implying that he had the right to terminate Mr. English as his counsel. The defendant expressed frustration as to Mr. English’s refusal to adopt his alibi defense and to the fact that Mr. English was “trying to make [him] cop to all three counts of murder,” indicating these factors had caused a breakdown in the attorney-client relationship. The defendant also claimed to have two new defense attorneys “on standby” ready to enroll “as soon as Mr. English is taken out of my case,” and the defendant assured the trial judge that these two new attorneys were “ready to proceed [to] trial,” scheduled to [556] begin two days later, and that there would “be- no ... delays.” However, when the trial. court asked the defendant if these replacement attorneys were present in the courtroom, the defendant replied “no.” The defendant was further unable to tell the trial court the names of his new defense attorneys, but argued to the court that he was credible about the fact that new counsel would enroll as he stated.21 The trial court then denied the defendant’s request to' discharge Mr. English and substitute counsel, stating:
[I]n anticipation of this motion and in looking up the law in this' motion, I’ve looked at State of Louisiana versus Roy Bridgewater that is cited at 823 So.2d 877 .... Mr. McCoy, there have been ' times' that [ 2(i.you have been represented by the Public Defender’s Office. There was a time that you had attempted to represent ... yourself .... [Y]ou have been represented by Mr. English. And the case stands for the right—you do have the right to choose counsel but that ■counsel cannot be chosen when it is an attempt to obstruct the Court’s orderly procedure or to interfere with a fair administration of justice. And it states that ... “In order for‘the defendant to exercise his right to- counsel he must exercise his right to counsel of his choice at a reasonable time, in a reasonable manner, and at an appropriate stage of the proceedings.” This matter has been set since February. This matter has been under a scheduling order at least . two different times. The case was continued by the Louisiana Second Circuit Court of Appeal in February and was continued to this term, which I specifically set aside in order to be able to have this hearing. We are two days before the hearing date .... [T]hese two attorneys that you state are going to represent you are not in this courtroom at this time. They have not come before this Court and asked to enroll in this case. Even if they were to enroll there would have to be assurances that they were prepared to go to trial on Thursday. So based on the fact that this is not a timely request and this Court also takes into consideration that even if there are irreconcilable differences between counsel and the person that is accused of a crime that the [Bridgewa-ter] Court said that ... “A right to counsel choice must be made in a timely manner. It must be the choice at a reasonable time, and a reasonable manner, and at an appropriate stage of the proceedings.” This is not an appropriate stage of the proceedings. There is no counsel that is present today to state that they would enroll. And therefore, I deny Mr. English being relieved at this time and he will remain as counsel of record and this case will go to trial on Thursday.
Having carefully examined the trial court record in this matter, we are unable •to say the trial court erred in its finding that the defendant’s motion' to substitute counsel was untimely and constituted an [557] attempt “to obstruct the Court’s orderly procedure or to interfere with a fair administration of justice.” Although the defendant asserts that he was unaware of Mr. English’s alleged refusal to pursue his claims of innocence as a defense and therefore unable at an earlier point in the proceedings to bring the alleged irreconcilable differences to the attention of the trial court and to seek a substitution of counsel, the record reflects that differences in the defendant’s expectations for his defense and Mr. English’s trial strategy were evident to the court and the parties as early as a December 14, 2010 hearing before the court, wherein the defendant and Mr. English discussed their ^disagreements before the trial court.
During the December 14, 2010 hearing (held on motion of Mr. English to have the defendant declared indigent so that public funds could be made available to hire mitigation experts), the trial court was informed that the defendant did not want to be declared indigent and did not want to hire 'mitigation experts since he wanted to put on a defense based entirely on his claim of innocence. During the hearing, Mr, English made several statements to the trial court, in the presence of the defendant, that the defendant was suffering from “severe mental and emotional issues,” and yet the defendant did not seek to replace Mr. English as his defense counsel at that time. • " ■
Subsequently, during a January 4, 2011 hearing (held oh issues related to pro se discovery motions filed independently by the defendant), it was revealed that Mr. English did not support the defendant’s pro se discovery requests seeking to develop certain evidence and witnesses related to his claims of innocence and the existence of an alibi. At the conclusion of the hearing, the defendant acquiesced in withdrawing his various pro se motions, and he made no objection to Mr. English’s continued representation.
Then, at a January 24, 2011 hearing, provoked by the district attorney in light of Louisiana Supreme Court Rule XXXI (“In any capital case in which a defendant is found to be indigent, the court shall appoint no less than two attorneys to represent the defendant ,...”) to “get Mr. English and/or Mr. McCoy’s position” on the rule since Mr. English was not certified as a capital defense qualified counsel and there was no second defense counsel enrolled on the defendant’s behalf, the trial judge questioned the defendant about the issue, and the defendant informed the court that, even though Mr. English was not capital certified, he waived any Rule XXXI entitlement to representation by two attorneys because he did not want to have the public defender’s office reappointed to his | asease. Mr. English also divulged to the court, during that hearing, the difficulties he was having representing the defendant because of his “severe mental issues,” stating, “Mr. McCoy is going to attempt to take over this trial and argue in front of the jury.” Mr. English further stated, “It’s going to be a zoo, Judge, because I’m not going to do what he wants me to do ... I do not believe this man is rational ...' I have an ethical duty to this man not to follow his bizarre behavior.” In response, the defendant advised the trial court that Mr, English “won’t subpoena people that will validate my innocence,” expounding at length on that assertion. The defendant further revealed to the trial court his awareness of Mr. English’s planned trial strategy when he stated: “Mr. English has told me there is no way he can win this case.” Notwithstanding, the defendant did not seek to have Mr. English substituted with other defense counsel.
[558] Further, as noted hereinabove, following an order by the appellate court in State v. McCoy, 46,394 (La. App. 2 Cir. 2/8/11) (unpublished), the trial court held a February 3, 2011 hearing, to revisit the defendant’s refusal to allow appointment of a second defense attorney from the public defender’s office to satisfy this court’s Rule XXXI of “no less than two attorneys” to represent an indigent defendant, the defendant chose to continue to be represented only by Mr. English, stating, “I choose not to be strong armed to take a public defender’s aspect of secondary counsel when that’s totally against my wishes.” It was at this hearing that the trial date of July 28,2011 was set.
Even though the defendant claims he had no knowledge that Mr. English was going to concede his guilt until July 12, 2011, argument presented by newly-enrolled appellate .counsel alluded, during a January 23, 2012 post-trial hearing on a motion for new trial, that the issue had been under discussion for at least a few months before trial, in stating:
Mr. English formed the view relatively early on that the evidence | ^against Mr. McCoy was overwhelming and that the ... only successful outcome in the case, in Mr. English’s view, was to try to persuade the jury to return a life sentence rather than the death sentence and that the best way to do that strategically was to concede Mr. McCoy’s guilt of the killings, being the killer of the three victims in this case .... A couple of months before the trial, Mr. English approached Mr. McCoy to put in fairly bold terms that he believed that Mr. McCoy needed to take a plea of guilty to a life sentence if he could get one rather than to proceed to trial.
The record clearly reveals the defendant’s awareness of Mr. English’s trial strategy, to avoid the death penalty by conceding guilt and seeking a life sentence, some eight months prior to July 12, 2011.22 Thus, the trial judge did not abuse his discretion by denying the motion to discharge and replace retained counsel two days before trial. This assignment of error is without merit.
Right to Self-Representation
In his second assignment of error, the defendant contends he was denied his right to self-representation, when, after the trial court denied his motion to substitute another trial counsel for My. English during a July 26, 2011 hearing on the matter held two days before trial, the defendant attempted to invoke his right of self-representation.
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel; for this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of selfjrepresentation80, so that the record will establish that he knows what he is doing and his choice is made “with eyes open.” Id. Thus, when a [559] defendant asserts this right of self-representation, a trial judge must make two independent decisions: (1) whether defendant’s waiver of his right to be represented by counsel is intelligently and voluntarily made, and (2) whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179, 1181-82 (La. 1977). A trial judge confronted with an accused’s unequivocal request to represent himself need determine only whether the accused is competent to waive counsel and is “voluntarily exercising his informed free will.” State v. Santos, 99-1897, p. 3 (La. 9/15/00), 770 So.2d 319, 321 (per curiam).23
Whether the defendant has knowingly, intelligently, and unequivocally asserted the right to self-representation must be determined based on the facts and circumstances of each case. State v. Bridgewater, 00-1529 at p.18, 823 So.2d at 894 (“[CJourts should ‘indulge in every reasonable presumption against waiver.’ ”) (quoting 3 Wayne R. LaPave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 11.3(a) (2nd ed. 1999)).
Furthermore, the right to self-representation is not absolute. Martinez v. Court of Appeal of California, 528 U.S. 152, 161, 120 S.Ct. 684, 691, 145 L.Ed.2d 597 (2000). Most courts require the defendant to elect to represent himself in a timely manner. Id., 528 U.S. 152, 161-62, 120 S.Ct. 684, 691. A defendant who waits until trial to ask the court to excuse his appointed attorney in order to search for retained counsel, after having acquiesced in representation by an attorney throughout pretrial procedures, has waited so long that a trial judge’s |31 action in denying such a delaying tactic is justified. State v. Hegwood, 345 So.2d at 1182; State v. Austin, 258 La. 273, 278-79, 246 So.2d 12, 13-14 (1971).
In the case at bar, on July 26, 2011, the defendant sought to discharge and replace Mr. English as defense counsel, but the motion was denied by the trial court. Immediately after the trial court informed the parties that Mr. English would be continuing as counsel and that the trial would commence in two days, the defendant stated:
MR. MCCOY: Through Ache [sic] versus OklahomaFootnotes
218 So. 3d 535 (State of Louisiana v. Robert Leroy McCoy) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.