STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
07-0774
STATE OF LOUISIANA
VERSUS
WALTER R. COX, SR.
************
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 8925-05 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Ulysses G. Thibodeaux, Chief Judge, Sylvia R. Cooks and Jimmie C. Peters, Judges.
AFFIRMED IN PART, VACATED IN PART, RENDERED IN PART, AND REMANDED WITH INSTRUCTIONS.
John F. DeRosier District Attorney Carla Sue Sigler Assistant District Attorney 1020 Ryan Street Lake Charles, LA 70601 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana Mark O. Foster Louisiana Appellate Project Post Office Box 2057 Natchitoches, LA 71457 (318) 572-5693 COUNSEL FOR DEFENDANT/APPELLANT: Walter R. Cox, Sr.
Walter R. Cox, Sr. Camp D. Hawk 3/R Angola, LA 70712 PRO SE PETERS, J.
The State of Louisiana (state) charged the defendant, Walter Cox, Sr., by grand
jury indictment with the offenses of manslaughter, a violation of La.R.S.
14:31(A)(2)(a); aggravated obstruction of a highway of commerce, a violation of
La.R.S. 14:96; and aggravated criminal damage to property, a violation of La.R.S.
14:55. A jury found him guilty of all three charges, and, thereafter, the trial court
sentenced him to serve forty years at hard labor for the manslaughter conviction,
fifteen years at hard labor for the aggravated obstruction of a highway of commerce
conviction, and fifteen years at hard labor for the aggravated criminal damage to
property conviction. The trial court ordered that the sentence imposed for the
aggravated criminal damage to property conviction run concurrently with the
sentence imposed on the manslaughter conviction, and that the sentence imposed for
the aggravated obstruction of a highway of commerce conviction run consecutively
to the other sentences. After the trial court denied his motion to reconsider his
sentence, the defendant filed this appeal, contesting both his convictions and
sentences. For the following reasons, we affirm the defendant’s conviction and
sentence for aggravated criminal damage to property, vacate the defendant’s
convictions and sentences for manslaughter and aggravated obstruction of a highway
of commerce, enter a judgment of conviction of negligent homicide, and remand the
matter to the trial court for sentencing on that charge. Additionally, we remand the
matter to the trial court for it to comply with the notification requirements of La.Code
Crim.P. art. 930.8.
DISCUSSION OF THE RECORD
On March 19, 2005, while negotiating a curve on Louisiana Highway 12 in
Calcasieu Parish, Louisiana, the defendant’s vehicle struck another vehicle traveling in the opposite direction. The driver of the approaching vehicle, Donna McKee, died
as a result of the injuries she sustained in the accident. The collision causing the
death of Mrs. McKee gave rise to the criminal charges against the defendant.
ERRORS PATENT EVALUATION
Louisiana Code of Criminal Procedure Article 920(2) requires that all appeals
be examined for errors that are “discoverable by a mere inspection of the pleadings
and proceedings and without inspection of the evidence.” In performing this
examination of the record now before us, we find one such error.
The trial court failed to advise the defendant of the prescriptive period for filing
post-conviction relief as required by La.Code Crim.P. art. 930.8. That being the case,
we must remand this matter to the trial court with instructions to properly inform the
defendant of the provisions of that article by providing him with written notice. State
v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.
2/10/06), 924 So.2d 163.
OPINION
The defendant’s first three assignments of error relate to the sufficiency of the
evidence presented in support of his conviction on each offense.
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to
2 affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
The evidence establishes that on March 19, 2005, the defendant arrived at the
Beauregard Parish, Louisiana residence of his son, Walter Cox, Jr., at approximately
11:00 a.m. He informed his son that he was fleeing from the police and needed
money. His son instructed the defendant to meet him at a particular truck stop in
Calcasieu Parish and said he would bring him some money. After the defendant left,
Mr. Cox, Jr. telephoned law enforcement officials in an attempt to effect the peaceful
surrender of his father at the truck stop.
The peaceful surrender did not materialize. Instead, the defendant drove away
from the truck stop with law enforcement officers in pursuit. The high-speed chase
that followed involved the defendant running stop signs, driving around police road
blocks, and driving through residential neighborhoods at speeds approaching one
hundred miles per hour. In fact, before the collision that gave rise to the charges now
before us, the defendant had begun to outpace the officers in pursuit, partially because
they had backed off from the chase due to safety concerns.
Officer Roger Thomas of the Calcasieu Parish Sheriff’s Office testified for the
state as an accident reconstruction expert. According to Officer Thomas, no evidence
existed at the scene of the collision that either the defendant or Mrs. McKee ever lost
control of their respective vehicles. Evidence did exist to suggest that Mrs. McKee
attempted to avoid the collision by veering to her right, or away from the defendant’s
approaching vehicle, and that at some point prior to the collision the defendant turned
his vehicle slightly left, toward the victim. This turn to the left resulted in a four-
3 degree angle of impact. Officer Thomas estimated the defendant’s speed at the time
of collision at approximately eighty-five miles per hour, and estimated Mrs. McKee’s
speed at approximately forty miles per hour.
With regard to the four-degree left, inward movement by the defendant, Officer
Thomas acknowledged that it could just as accurately be described as a “drift” rather
than a “turn” to the left. However, he discounted the possibility that this movement
might have been caused by loss of control of the vehicle. Had that occurred, Officer
Thomas opined, centrifugal force would have carried the defendant’s vehicle to the
right, not the left. Additionally, he did not credit the movement to the defendant
overcorrecting by steering to the left. Had that occurred, he opined, one would have
expected to find tire marks, i.e., “scuffing,” or “slipping,” left by such an action. No
such marks were found at the scene.
James McKee, the victim’s husband, was in the vehicle with his wife when the
collision occurred. He testified that immediately before the collision he observed the
defendant’s vehicle approaching in their lane of traffic. According to Mr. McKee, his
wife moved to the right to avoid the oncoming vehicle, but the defendant then turned
his vehicle into theirs. Mr. McKee testified that in watching the collision unfold, he
“felt like a target.”
The defendant does not dispute the fact that he killed Mrs. McKee in the
collision. Instead, he argues that the evidence does not support proof beyond a
reasonable doubt that he committed any of the offenses.
Aggravated Obstruction of a Highway of Commerce
We agree with the defendant that the state failed in its burden to establish that
he is guilty of aggravated obstruction of a highway of commerce. Louisiana Revised
4 Statute 14:96 defines that offense in pertinent part as “the intentional or criminally
negligent placing of anything, or performance of any act, on any . . . highway . . .
wherein it is foreseeable that human life might be endangered.” (Emphasis added.)
The offending act in La.R.S. 14:96 is the “placing” of something in a highway.
The defendant did not place anything in the highway. Instead, he drove his vehicle
on the wrong side of the highway, a violation of La.R.S. 32:71. We do not find that
the act of driving in the wrong lane on a highway equates to placing something in that
highway.
The defendant points out that no court has interpreted La.R.S. 14:96 to find that
someone traveling in the wrong lane of traffic could be obstructing that lane as
contemplated by that statute. The defendant further notes in his brief that to interpret
La.R.S. 14:96 in the manner suggested by the state would make virtually all traffic
offenses involving accidents violations of this statute—that is to say, felonies.
The case cited by the state, State v. Winnon, 28,654 (La.App. 2 Cir. 9/25/96),
681 So.2d 463, writ denied, 96-2576 (La. 3/27/97), 692 So.2d 391, does not support
its position. In Winnon, the defendant “maneuvered his truck perpendicular to the
direction of travel, obstructing the entire roadway, to block [the victim’s] passage on
the road”, exited his vehicle, walked back to the victim’s vehicle, and assaulted her.
Id. at 465. In other words, he used the placement of his vehicle to create an
obstruction of the highway.
Finding that the evidence does not support the defendant’s conviction of
aggravated obstruction of a highway of commerce, we vacate this conviction and
sentence.
5 Aggravated Criminal Damage to Property
Louisiana Revised Statute 14:55 defines aggravated criminal damage to
property in pertinent part as “the intentional damaging of any . . . movable, wherein
it is foreseeable that human life might be endangered, by any means other than fire
or explosion.” This offense requires only a general criminal intent. State v.
Davenport, 33,961 (La.App. 2 Cir. 11/1/00), 771 So.2d 837, writ denied, 00-3294
(La. 10/26/01), 799 So.2d 1150. “General criminal intent is present whenever there
is specific intent, and also the circumstances indicate that the offender, in the ordinary
course of human experience, must have adverted to the prescribed criminal
consequences as reasonably certain to result from his act of failure to act.” La.R.S.
14:10(2).
Mr. Cox, Jr. testified that when the defendant came to his home to ask for
money, he said he needed the money to provide for himself. The defendant further
told his son that he was willing to use violence to avoid capture, that he had no
intention of going to jail, and that he would kill himself and anyone that got in his
way. Mr. Cox, Jr. observed a pistol in his father’s vehicle as the two men carried on
their conversation. Additionally, the state introduced the defendant’s written
statement, through the testimony of Mr. Cox, Jr., wherein the defendant wrote, “I
think every day about hitting a truck head on.” When he contacted the authorities,
Mr. Cox, Jr.’s primary goal was to effect his father’s peaceful surrender. His concern
was that, given the defendant’s state of mind, a confrontation between him and law
enforcement personnel would result in someone being injured or killed. Justification
for this concern is clearly found in the defendant’s actions after the police pursuit
began. He placed in jeopardy not only the safety of the law enforcement personnel
6 and himself, but also the safety of entire neighborhoods and all of the motorists on
the highways in the vicinity.
In addition to arguing that there was insufficient evidence to support the
conviction of aggravated criminal damage of property, the defendant asserts another
assignment of error: that the trial court erred in improperly limiting his questioning
of Officer Thomas.
During Officer Thomas’s testimony, the defendant’s counsel attempted to
question him concerning the possibility that the defendant’s vehicle movement at the
time of the collision resulted from inattention or over-correction and not an
intentional act. In response, Officer Thomas stated the following:
In order -- again, I go back to what I said earlier. If that is the case, -- you've got to remember, you have high speed on this vehicle. You have weight on this vehicle. You have tire slipping on this vehicle. You have a little -- you have a slight left curve. And if the vehicle starts one direction or the other, normally you're going to have tire slipping. And when you have tire slipping, you're going to have some types of marks. They may be just shadows, they may be just, you know, side slip marks, whatever, but you're going to have something you can go back and identify with. We looked closely for that. We didn't see any evidence of that. So, I don't -- I would not go with that theory.
When the defense counsel attempted to renew questioning along a “possibility” line,
the state objected, asserting that the question had been asked and answered. After a
lengthy bench conference involving a discussion of whether Officer Thomas’s
response that “I would not go with that theory” was a “yes” or “no” answer, the trial
court sustained the state’s objection. This ruling constitutes the substance of this
assignment of error.
It appears that the defendant hoped, by this line of questioning, to make the
point that it was possible for the defendant’s tires to slip on the pavement without
leaving marks. Earlier in the defendant’s cross-examination of Officer Thomas, he
7 responded to a similar question by explaining that a number of factors play a part in
the analysis of a vehicle’s movement, including the physical makeup of the curve at
issue, the speed and weight of the vehicle involved, gravity, centrifugal force, and
coefficients of friction of the highway surface. According to Officer Thomas, had the
defendant lost control because of excessive speed, inattentiveness, over-correction,
or even temporary loss of consciousness, the vehicle would move to the right, not to
the left. Additionally, Officer Thomas testified that, in such a situation, he would
have expected to find evidence of tire slipping through the existence of tire marks.
Thus, Officer Thomas had already discounted the point which defense counsel was
attempting to make, and the issue had already been placed before the jury.
Louisiana Code of Evidence Article 611(A) provides:
Except as provided by this Article and Code of Criminal Procedure Article 773, the parties to a proceeding have the primary responsibility of presenting the evidence and examining the witnesses. The court, however, shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.
(Emphasis added.)
Although La.Code Evid. art. 611(B) provides that “[a] witness may be cross-
examined on any matter relevant to any issue in the case,” the supreme court has
noted that “[t]he trial judge has discretionary power to control the extent of the
examination of witnesses, provided the court does not deprive the defendant of his
8 right to effective cross-examination.” State v. Hawkins, 96-766, p. 6 (La. 1/14/97),
688 So.2d 473, 479.
We find no abuse of the trial court’s discretion in controlling the extent of
examination of Officer Thomas. Furthermore, given the defendant’s state of mind as
established by his son’s testimony, the testimony of Officer Thomas concerning the
specifics of the collision, and the testimony of Mr. McKee concerning the defendant’s
actions in turning into the vehicle he occupied, we find that a rational trier of fact
could have found that the state proved beyond a reasonable doubt the essential
elements of the offense of aggravated criminal damage to property. Therefore, we
find no merit in the assignment of error addressing the sufficiency of the evidence
relating to this offense or the assignment of error relating to the defendant’s cross-
examination of Officer Thomas.
Manslaughter
The defendant’s manslaughter conviction is based on La.R.S. 14:31(A)(2)(a)
which defines the offense as “[a] homicide committed, without any intent to cause
death or great bodily harm . . . [w]hen the offender is engaged in the perpetration or
attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any
intentional misdemeanor directly affecting the person.” In this case, the defendant
was convicted of two felonies not enumerated in La.R.S. 14:30 and 30.1. However,
in its instructions to the jury, the trial court stated that the underlying felony upon
which the manslaughter charge was based was that of aggravated obstruction of a
highway of commerce. Specifically, the trial court instructed the jury as follows:
Thus, in order to convict the defendant of manslaughter, you must find:
9 (1) That the defendant killed Donna S. McKee whether or not he had an intent to kill; and
(2) That the killing took place while the defendant was engaged in the commission or attempted commission of aggravated obstruction of a highway of commerce.
The state voiced no objection to this limiting instruction and, in its closing argument,
postured its position in light of the trial court’s instruction, making no attempt to
incorporate the aggravated criminal damage to property charge in its manslaughter
argument. Additionally, after the jury had begun its deliberations, the trial court
repeated its instructions concerning the manslaughter charge.
As previously stated, the state failed to prove beyond a reasonable doubt that
the defendant committed the offense of aggravated obstruction of a highway of
commerce. “A jury is not required constitutionally to agree on a single theory to
convict a defendant where it is instructed as to alternate theories.” State v. Allen,
41,458, p. 6 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1252, (emphasis added),
(citing Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491 (1991) and State v. Vergo,
594 So.2d 1360 (La.App. 2 Cir.), writ denied, 598 So.2d 373 (La.1992)). See also
State v. Gay, 36,357 (La.App. 2 Cir. 10/23/02), 830 So.2d 356 and State v. Patorno,
01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141. However, when the evidence is
insufficient to establish an offense under the one definition of the offense that has
been argued or presented to the jury, “the conviction cannot be upheld based on
speculation about what verdict the jury would have returned if it had been informed
of a different statutory basis” for establishing a defendant’s guilt, and “[w]hen the
prosecution chooses to limit its case in this fashion, a defendant cannot be convicted
of [the offense charged] based on assumptions about what the jury would have found
10 if the prosecution had presented its case differently.” State v. Johnson, 541 So.2d
818, 827 (La.1989).
Given the trial court’s limiting instruction, the state’s argument to the jury, and
our finding that the conviction for aggravated obstruction of a highway of commerce
must be vacated, we must also conclude that the state failed to prove beyond a
reasonable doubt that the defendant committed the offense of manslaughter as set
forth in La.R.S. 14:31(A)(2)(a). However, our analysis does not end with that
conclusion. While we vacate the manslaughter conviction and sentence, we must
now determine whether the trial evidence supports a conviction for a lesser and
included offense.
“It is well-settled that in cases where Louisiana courts have reversed
convictions for insufficiency of the evidence, they have authority to order the entry
of convictions for lesser-included offenses where the records support such lesser
convictions.” State v. Ruiz, 06-30, p. 10 (La.App. 3 Cir. 5/24/06), 931 So.2d 472,
479, affirmed and remanded, 06-1755 (La. 4/11/07), 955 So.2d 81. In this case,
negligent homicide, a violation of La.R.S. 14:32, is a responsive verdict to
manslaughter. La.Code Crim.P. art. 814(A)(5).
Louisiana Revised Statutes 14:32(A) provides that “[n]egligent homicide is the
killing of a human being by criminal negligence.” Additionally, La.R.S. 14:12
provides that “[c]riminal negligence exists when, although neither specific nor
general criminal intent is present, there is such disregard of the interest of others that
the offender’s conduct amounts to a gross deviation below the standard of care
expected to be maintained by a reasonably careful man under like circumstances.”
11 Without repeating the factual history, we can safely say that the record before
us overwhelmingly supports a finding that the defendant killed Mrs. McKee by
conduct that amounted to criminal negligence. That being the case, we find the
defendant guilty of the responsive verdict of negligent homicide and remand the
matter to the trial court for sentencing on this charge.
Confrontation Issue
Next, the defendant complains that the trial court erred when it allowed a
hearing to proceed without his presence. We disagree.
Shortly after the jury was sworn and seated, the defendant complained of chest
pains. Outside of the presence of the jury, but in the presence of the defendant, the
trial court announced that it would release the defendant to obtain medical care and
would advise the jury (with instructions) that trial would be in recess until the next
day. The defendant’s counsel specifically waived the defendant’s presence for these
comments to the jury. Immediately thereafter, the defendant was transferred for
medical treatment.
After the defendant left the court room, the trial court held a hearing wherein
both the state and defendant’s counsel questioned Walter Cox, Jr. to ascertain the
nature of his trial testimony and to ensure he would not testify regarding “other
crimes evidence.” At the close of the hearing, the defendant’s counsel stated that he
waived the defendant’s presence for this hearing and that he believed the hearing was
in the defendant’s best interest.
With regard to a defendant’s presence or absence in a particular proceeding,
the supreme court has explained:
A criminal defendant charged with a felony has a right to be present “[a]t the calling, examination, challenging, impaneling, and
12 swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror. . . .” La.Code Crim. Proc. art. 831A(3); State v. Hampton, 99-2605, pp. 1-2 (La.5/28/99), 737 So.2d 699, 700. The rule is broader than an accused’s due process right to be present at all stages of trial when his absence might frustrate the fairness of the proceeding. Id., citing United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985).
Yet the provisions of Article 831 are not absolute. In addition, an accused may waive his presence by voluntary absence, La.Code Crim. Proc. art. 832, or by not objecting to his absence from an Article 831A(3) hearing, as required under the general contemporaneous objection rule to preserve the matter. La.Code Crim. Proc. art. 841; State v. Taylor, 93-2201, pp. 4-7 (La.2/28/96), 669 So.2d 364, 367-69.
State v. Broaden, 99-2124, pp. 14-15 (La. 2/21/01), 780 So.2d 349, 360, cert. denied,
534 U.S. 884, 122 S.Ct. 192 (2001).
In this matter, it is clear that the defendant’s counsel waived his presence and
the defendant failed to object when he had the opportunity upon his return to the
court. Thus, we find no merit in this assignment of error.
Sanity Commission Issue
The defendant initially entered a plea of not guilty to the three offenses.
Thereafter, he filed a motion for the appointment of a sanity commission to determine
his mental capacity to assist his legal counsel in his defense. The trial court
appointed a sanity commission and, after a hearing, rejected the defendant’s argument
that he was unable to assist his counsel in his defense. He now claims, by assignment
of error, that the trial court erred in rejecting this argument.
This issue arose because the defendant sustained severe personal injuries in the
March 19, 2005 collision. He asserted at the hearing on the sanity issue that he
suffers from amnesia caused by the organic brain injury sustained in the collision, and
that this condition precludes his ability to assist in his own defense. He based this
argument on La.Code Crim.P. art. 641, which provides that “[m]ental incapacity to
13 proceed exists when, as a result of mental disease or defect, a defendant presently
lacks the capacity to understand the proceedings against him or to assist in his
defense.” (Emphasis added.)
The trial court heard testimony from both of the sanity commission members,
Dr. James M. Anderson, a Lake Charles, Louisiana medical doctor board certified in
psychiatry and neurology, and Dr. Charles Robertson, a Lake Charles, Louisiana
neuropsychologist, on the issue of the defendant’s capacity to assist in his defense.
Additionally, the state introduced the written reports prepared by the experts. While
both doctors generally expressed the opinion that the defendant could not assist in his
defense, they also expressed their lack of comfort in the opinions expressed and
suggested that access to other information might well affect their opinions.
Dr. Anderson testified that he examined the defendant for approximately one
hour and found the defendant to be “knowledgeable, logical, organized, [and]
coherent.” According to the doctor, the defendant claimed to have no history of the
events giving rise to his prosecution. He also stated that such a memory loss was not
inconsistent with someone who suffered organic brain syndrome in an automobile
accident. The doctor concluded that, assuming the memory loss claimed by the
defendant, he would have difficulty in assisting in his defense in that this limited
memory would make it difficult for him to “inform his attorney of distortion or
misstatements of others,” or “to assist his attorney in locating and examining
witnesses.” Despite these concerns over the defendant’s ability to assist in his
defense, Dr. Anderson testified that he would defer to the opinion of Dr. Robertson
on that issue because Dr. Robertson “is well versed in organic brain syndrome and
may have more and better information to provide on this [issue].”
14 Much of Dr. Anderson’s concern in formulating his opinion arose from the
defendant’s ability to recall the events which occurred immediately before the
vehicular pursuit and those immediately thereafter, but his inability to recall the
pertinent facts related to the collision. According to the doctor, such selective
memory is normally “a real indication of malingering.” Still, Dr. Anderson found no
evidence of that trait in the defendant. However, he also noted that the defendant was
“well familiar with the legal system.”
Dr. Anderson’s written report corresponded to his testimony in all respects. Of
the seven questions addressed to the doctor relative to the defendant’s ability to
understand the proceedings against him, Dr. Anderson answered only two in the
negative. He found that the defendant was unable to recall and relate facts
concerning his actions and whereabouts at certain times because of the defendant’s
claim that he could not recall those times. Additionally, and again because of the
defendant’s lack of recall, Dr. Anderson concluded that the defendant would not be
able to inform his attorney when others distorted or misstated facts. In answering the
remaining five questions, the doctor concluded that the defendant could assist his
counsel in locating and examining witnesses, could make decisions in response to
well-explained alternatives, could testify relevantly and be cross-examined at trial,
could refrain from irrational behavior at trial, and could tolerate the stress of trial and
the stress of awaiting trial.
Dr. Robertson also examined the defendant for approximately one hour. As a
result of that examination he concluded that the defendant was not competent to stand
trial based solely on his finding that the defendant would be unable to recall facts
surrounding the collision, and therefore would be unable to assist his counsel in
15 “identifying witnesses and recognizing the misstatements of other witnesses.”
However, the doctor acknowledged that, in reaching that conclusion, he had to rely
strictly on responses from the defendant. According to Dr. Robertson, the defendant
could recall events that served his interest. Still, the doctor found the defendant to
be believable and his responses to be consistent with his medical history of traumatic
brain injury. Specifically, the defendant informed Dr. Robertson that he had been “in
a motor vehicle accident, transported to a local hospital, treated and released to jail,
and subsequent to that, the night of his incarceration, crashed, basically had to be
taken to a New Orleans hospital for care for brain swelling.”
Dr. Robertson testified that unconsciousness as a result of a brain injury would
usually cause a thirty minute memory loss, but that the length of memory loss
depends on “when the unconsciousness developed, how long it lasted, whether [the
injured party] was unconscious at the scene and recovered consciousness, and then
went unconscious again later on as the brain swelled.” The doctor could not even be
sure that those post-collision facts related to him by the defendant were facts he
remembered or facts supplied to him by others during his recovery.
Dr. Robertson’s written report addressed the same seven questions relative to
the defendant’s ability to assist in his defense as did Dr. Anderson’s. In addressing
the questions, Dr. Robertson concluded that the defendant would not be able to recall
and relate facts pertaining to the collision because of his injuries, that he would not
be able to assist in locating and examining witnesses for the same reason, that he
could not maintain a consistent defense because he felt helpless in his inability to
inform his attorney of the events of the collision, and that listening to testimony and
informing his counsel of distortions or misstatements would be impossible because
16 of his absence of recall. Dr. Robertson concluded that the defendant could make
simple decisions in response to well-explained alternatives, could testify in his
defense, and could handle the stress associated with the trial. However, even these
positive findings were subject to the loss of memory limitation. The report
summarizes the doctor’s findings as follows:
Mr. Cox represents an unusual case in that he alleges traumatic brain injury with loss of consciousness, retrograde amnesia, and a period of post traumatic amnesia. He told me he was in a coma for 13 days and was in a hospital for 28 days. He said he was treated and released at sulfur hospital and transferred to the jail. Subsequent to that, he was transferred to New Orleans due to swelling of the brain. He alleges no memory for events from the March accident through late April. If his medical records bear this out, these conditions cannot be reversed. However, if he did not lose consciousness in the accident and did not appear to be altered in the emergency room, he may have memory for the events before his transfer to New Orleans. I would like an opportunity to review the medical records available pertaining to his injuries in the motor vehicle accident and his treatment in New Orleans to confirm the version he reported. This would be followed up by a subsequent examination at a later date.
Dr. Robertson summarized the reason for the discomfort on the part of both
doctors as follows:
As Dr. Anderson said he was uncomfortable or was unable to arrive at an opinion, and I was uncomfortable arriving at an opinion because I had only the hour I spent with the defendant to base my opinion on, and if I do, am provided subsequently with an independent record that I could follow up on that either confirms for or against the events related by the defendant. I might revise that opinion. But my opinion about his competency to stand trial at present is restricted only to his ability to testify and relate facts that are considered to be or that I believe to be a period of amnesia for him. That would be the only limit.
When questioned concerning what he meant by an “independent record,” Dr.
Robertson suggested that information from the officer at the scene or emergency
personnel concerning the defendant’s physical status, i.e., whether he was conscious
17 or unconscious at the scene, during transport to the hospital, or upon arrival at the
hospital, would have been most helpful. Additionally it would have been potentially
helpful to know whether he was questioned during these events and, if so, his
responses to those questions.
In finding the defendant competent to assist in his defense, the trial court relied
heavily on the experts’ discomfort in rendering their decisions. Specifically, the trial
court expressed concern with the experts’ reliance on the defendant’s recollection and
found that Dr. Anderson’s statement concerning selective memory as an indication
of malingering to be applicable to the defendant’s related history. That is to say, the
trial court simply did not believe the defendant. Additionally, the trial court found
no difference between the defendant’s memory loss and that of someone whose
memory loss can be related to intoxication, narcotics use, or blackouts or seizures.
Given the experts’ testimony concerning their desire to have more information upon
which to base their opinions, the credibility of the defendant, and the trial court’s
experience in other cases wherein individuals developed selective memory relative
to their criminal liability, the trial court rejected the defendant’s argument that he was
unable to assist in his defense.
The defendant bears the burden of proving his incapacity to stand trial. State
v. Stewart, 03-920 (La.App. 5 Cir. 1/27/04), 866 So.2d 1016, writ denied, 04-449 (La.
6/25/04), 876 So.2d 832. However, the burden is preponderance of the evidence and
not proof beyond a reasonable doubt. Id. In any event, the ultimate determination
regarding competency is within the discretion of the trial court, and the reviewing
court should not reverse that finding absent an abuse of that discretion. State v.
Bridgewater, 00-1529 (La. 1/15/02), 823 So.2d 877, rehearing on other grounds, 00-
18 1529 (La. 6/21/02), 823 So.2d 909, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266
(2003); State v. Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, cert. denied, 528
U.S. 893, 120 S.Ct. 220 (1999).
In this matter, the experts’ conclusion that the defendant could not assist in his
defense was not unequivocal, and there is no evidence that the information they
needed for a complete analysis was unavailable. Thus, the defendant failed in his
burden of proof on this issue, and the trial court did not abuse its discretion in
rejecting the defendant’s claim that he was not competent to stand trial. We find no
merit in this assignment of error.
Double Jeopardy Issue
The defendant argues that his convictions for manslaughter and the underlying
felonies violate the constitutional principle that bars double jeopardy. We find that
this argument has no merit as to the conviction for aggravated criminal damage to
property because the state based its manslaughter conviction on the underlying charge
of aggravated obstruction of a highway. Additionally, our finding that the
convictions for both aggravated obstruction of a highway and manslaughter must be
vacated renders the balance of this assignment moot.
Sentencing Issues
The sentences imposed for the three convictions were the maximum
incarceration sentences allowable. La.R.S. 14:31(B), La.R.S. 14:55, La.R.S. 14:96.
However, because we have vacated the convictions for aggravated obstruction of a
highway of commerce and manslaughter, we need only consider the sentence imposed
for the violation of La.R.S. 14:55.
19 The analysis for excessive-sentence claims is well-settled. In State v. Barling,
00-1241, 00-1591, (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.
2/1/02), 808 So.2d 331, this court explained:
La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.
Id., at 1042-43 (citations omitted).
To aid in this review, the courts have employed the following three-step
analysis: “The court should consider three factors in reviewing a judge’s sentencing
discretion: 1. the nature of the crime, 2. the nature and background of the offender,
and 3. the sentence imposed for similar crimes by the same court and other courts.”
State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied,
99-433 (La. 6/25/99), 745 So.2d 1183 (citations omitted). Additionally, we note that
maximum sentences should be reserved for the worst offenders. State v. LeBlanc, 578
So.2d 1036 (La.App. 3 Cir. 1991), writ denied, 620 So.2d 833 (La.1993).
In considering the factors set forth in Lisotta, we first note that the nature of the
offense of aggravated criminal damage to property is of a serious nature in that it
contemplates a situation “wherein it is foreseeable that human life might be
endangered.” La.R.S. 14:55. Furthermore, the record before us establishes that the
defendant acted with complete indifference to human life.
20 Regarding the second Lisotta factor, we note that during the sentencing process
the trial court found that not only was the defendant without remorse for his actions,
but that his behavior and attitude reflected his personal contempt for the court and the
witnesses, particularly Mr. McKee, despite having caused the death of the man’s
spouse. In addressing the evidence presented concerning the defendant’s willingness
to lose his own life rather than be taken into custody, the trial court noted that,
assuming that evidence to be accurate, there existed no justification for placing so
many innocent individuals in harm’s way and that the defendant’s actions were just
another example of the defendant’s lack of concern for anyone other than himself.
The trial court noted that the evidence established the defendant’s criminal
record to be long and significant. The defendant, who was sixty-four years old at
sentencing, began developing a criminal record in 1960 with charges ranging from
issuing worthless checks to first degree murder. The presentence investigation report
reflects seventeen prior charges and three convictions: breaking and entering and
larceny in Raleigh, North Carolina, in 1961; simple escape in Raleigh, North
Carolina, in 1961; and manslaughter in Amite, Louisiana, 1969. The manslaughter
conviction resulted from a plea agreement involving a first degree murder charge.
While disposition records were apparently not available for most of the other charged
offenses, the majority were violent in nature. In fact, at the time of the offense now
before us, the defendant was fleeing apprehension for aggravated incest.
We conclude, as did the trial court, that the defendant is among the worst of
offenders. With regard to the third Lisotta factor, our examination of the
jurisprudence reveals no decisions on point. However, the record before us supports
our conclusion that the trial court did not abuse its discretion in sentencing the
21 defendant to fifteen years at hard labor, the maximum sentence for the offense of
aggravated criminal damage to property.
Pro Se Assignment of Error
The defendant’s pro se assignment of error relates to the trial court’s instruction
to the jury regarding manslaughter. This assignment has been rendered moot by our
decision to vacate the manslaughter conviction.
DISPOSITION
We affirm the defendant’s conviction and sentence for aggravated criminal
damage to property, vacate the defendant’s convictions and sentences for
manslaughter and aggravated obstruction of a highway of commerce, enter a
judgment of conviction of negligent homicide, and remand the matter to the trial court
for sentencing on that charge. Finally, we remand the matter to the trial court with
instructions to inform the defendant of the provisions of La.Code Crim.P. art. 930.8
by sending appropriate written notice to the defendant within ten days of the rendition
of this opinion and to file written proof that the defendant received the notice in the
record of the proceedings.
AFFIRMED IN PART, VACATED IN PART, RENDERED IN PART, AND REMANDED WITH INSTRUCTIONS.