State v. Batiste

687 So. 2d 499, 1996 WL 709742
Louisiana Court of Appeal·Decided December 11, 1996·No. 96-0526·Published·Cited by 20 cases

Opinion

687 So.2d 499 (1996)

STATE of Louisiana, Plaintiff-Appellee,
v.
Trivial BATISTE, Defendant-Appellant.

No. 96-0526.

Court of Appeal of Louisiana, Third Circuit.

December 11, 1996.

*500 Glennon P. Everett, Asst. Dist. Atty., Michael Harson, Lafayette, for State.

G. Paul Marx, Lafayette, for Trivial Batiste.

Before THIBODEAUX, COOKS and GREMILLION, JJ.

GREMILLION, Judge.

Defendant, Trivial Batiste, had several bills of information filed against him for various *501 crimes. These crimes were charged under different docket numbers and filed on different dates. On September 11, 1995, the district attorney's office chose to bring the instant charge, possession of a firearm by a felon, to trial. During the two years prior to the trial date, defendant had been before the court numerous times on this as well as the other docketed charges. During those times, defendant appeared without counsel, refused appointed counsel, and repeatedly told the court that he was going to retain his own counsel. At the September 11, 1995 proceeding, the trial judge ordered defendant to be prepared to go to trial the next day on the instant charge. This required defendant to either secure his own counsel, utilize the indigent defender, or represent himself.

Defendant chose to represent himself and a jury trial was held on September 12, 1995. A unanimous jury found that defendant was guilty as charged. On September 14, 1995, the trial court sentenced defendant to ten years at hard labor without benefit of parole, probation, or suspension of sentence. We affirm defendant's conviction and sentence.

FACTS

The Rayne City Police were called to defendant's cousin's house on May 22, 1995. The police arrived on the scene to find defendant trying to take a couch from the house. The police questioned defendant and asked him to leave the scene, but he refused. The police eventually had to arrest and restrain him. In doing so, they performed a necessary pat-down of defendant before putting him in the patrol car. The pat-down search yielded a concealed firearm.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE

These assignments of error will be considered together because they each concern defendant's right to counsel. Defendant argues that the trial court erred: (1) by forcing him to go to trial without counsel; (2) in imposing the sanction of proceeding to trial without allowing him to secure an attorney of his choice; and (3) by failing to inquire whether the attorney appointed for defendant had prepared for the trial or merely negotiated for a plea. We will consider these assignments of error together.

A criminal defendant is guaranteed the right to counsel in the Louisiana Constitution and the United States Constitution. La. Const. art. I, § 13, U.S. Const. amend. VI. The sixth amendment of the United States Constitution mandates the constitutional right to the assistance of counsel at every critical stage of the proceedings unless waived by the defendant. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). Unless a knowing and voluntary waiver of the right to counsel is obtained, a criminal defendant cannot be imprisoned unless represented by counsel at trial. State v. Smith, 479 So.2d 1062 (La.App. 3 Cir.1985), citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). This court has held that the right to counsel is a fundamental right given to defendants by our legal system; in fact, it is so integral that it is not subject to a harmless error analysis. State v. Dupas, 94-1264 (La.App. 3 Cir. 3/6/96); 670 So.2d 667. However, defendant's constitutional right to counsel of his choice cannot be utilized as an obstructive tactic to delay the court proceedings or to interfere with the fair administration of justice. State v. Champion, 412 So.2d 1048 (La.1982); State v. Simms, 505 So.2d 981 (La.App. 3 Cir.1987). Defendant must exercise his constitutional right at a reasonable time, in a reasonable manner, and at an appropriate stage in the criminal justice system. Champion, 412 So.2d 1048, citing State v. Lee, 364 So.2d 1024 (La.1978).

At issue in this case is whether or not defendant's actions constituted a valid waiver of his constitutional right to counsel. This problem is confounded due to the proceedings held in the other docketed charges brought against defendant. Because defendant claims he was not afforded an opportunity to retain counsel of his choice, we elect to review the court minutes of those proceedings in order to have a complete picture of the entire procedural history of this case. This requires us to review evidence which may be technically "outside the record" of the instant case. The court minutes show the numerous times in which defendant was *502 in court and allowed the opportunity to retain counsel or to have an attorney appointed for him. It also shows that he never appeared with retained counsel at any of those proceedings.

Defendant was in court on November 10, 1993, for arraignment on docket number 48249, on a charge of possession of stolen things. At that time, the minutes reflect that he was accompanied by counsel from the Indigent Defender Board and that he was referred to the IDB for appointment of counsel. On February 23, 1994, defendant was before the court for arraignment on docket numbers 48555 and 48556, on charges of distribution of crack cocaine. He entered a plea of not guilty through an IDB attorney and informed the court that he would retain his own counsel. On June 20, 1994, defendant's cases were called for trial, but defendant, appearing in proper person, moved for a continuance claiming that he had hired an attorney, one Joshua Frank. The court continued the trial date, indicated that Frank should enroll as attorney of record within 15 days, and instructed defendant that he would "proceed with or without an attorney" the next time the case was called for trial.

On July 6, 1994, a Motion to Determine Counsel was held and defendant again informed the court he had retained Frank. Frank, however, was not present. The minutes of August 29, 1994, reflect that the state continued the trial scheduled for that day. Defendant appeared in court on October 17, 1994, in proper person, for trial of three pending matters and informed the court that he was not satisfied with his attorney and would retain another. The trial was once again continued. Another Motion to Determine Counsel was set for November 30, 1994, but continued by the state. That motion was heard on February 8, 1995. Defendant again informed the court that he had retained Frank to represent him, but Frank never showed up for any of the proceedings. The court once again referred defendant to the IDB for appointment of counsel.

The three pending charges were again called for trial on April 10, 1995. Defendant was represented by an appointed attorney (who was standing in for yet another attorney appointed to represent defendant). That attorney requested a continuance after defendant informed the court he would retain his own counsel. The continuance was granted by the court. On May 26, 1995, defendant was brought before the court on the instant charge under docket number 50345, as well as for charges of simple criminal damage

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State v. Batiste, 687 So. 2d 499, 1996 WL 709742 (La. Ct. App. 1996).

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