State v. Graves

798 So. 2d 1090, 2001 WL 1161168
CourtLouisiana Court of Appeal
DecidedOctober 3, 2001
Docket01-0156
StatusPublished
Cited by22 cases

This text of 798 So. 2d 1090 (State v. Graves) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Graves, 798 So. 2d 1090, 2001 WL 1161168 (La. Ct. App. 2001).

Opinion

798 So.2d 1090 (2001)

STATE of Louisiana
v.
Jimmy GRAVES.

No. 01-0156.

Court of Appeal of Louisiana, Third Circuit.

October 3, 2001.
Rehearing Denied November 28, 2001.

*1091 Douglas L. Hebert, Jr., District Attorney —33rd JDC, Sharon Darville Wilson, Asst. D.A., Oberlin, LA, Counsel for Plaintiff/Appellee State of Louisiana.

Charles Dean Jones, Monroe, LA, Counsel for Defendant/Appellant Jimmy Graves.

Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.

GLEN B. GREMILLION, Judge.

In this case, the defendant, Jimmy Graves, appeals his conviction for the crimes of possession with intent to distribute marijuana and possession with intent to distribute cocaine, claiming that the trial court erred in allowing his trial to proceed in his absence. He also appeals his sentence claiming it was excessive. For the following reasons, we affirm.

FACTS AND PROCEDURE

The State charged Defendant in a bill of information with possession with intent to distribute marijuana, a violation of La.R.S. 40:966(A), possession with intent to distribute cocaine, a violation of La.R.S. 40:967(A), and conspiracy to commit possession with intent to distribute marijuana and cocaine, a violation of La.R.S. 14:26, La.R.S. 40:967(A)(1), and La.R.S. 40:966(A)(1). Defendant, who was present in court with his court appointed counsel, was tried by jury beginning on February 14, 2000. At that time, Defendant requested a continuance which was denied by the trial court. Thereafter, a motion to enroll by an attorney retained by Defendant was denied by the trial court. Defendant then made a motion to discharge his court-appointed attorney, which was also denied by the trial court. At that point, the jury was selected and the trial was recessed until the following day.

On February 15, 2000, the trial began with a reading of the bill of information and opening statements. The State began its case in chief and rested at the end of the day, after which the trial was continued until 9:00 a.m. the next day. On February 16, 2001, before trial could commence, Defendant complained of chest pains and the trial court sent him to the local hospital in Oakdale and from there he was transported to the Huey P. Long Hospital in Alexandria. The trial was continued until the next day.

On February 17, 2000, at 2:00 p.m., Defendant was not present in court, but the trial continued with his court-appointed attorney present. No evidence was offered on behalf of Defendant other than a proffer of a taped conversation between Defendant and a co-defendant. Defense Counsel then orally moved for a mistrial claiming Defendant's absence from trial was involuntary because of his medical condition. At that time, Defense Counsel informed the trial court that Defendant contacted him the night before and told him that he had a medical emergency that required his transportation to Huey P. Long Hospital. In support of his motion for mistrial, Defense Counsel proffered a doctor's note excusing Defendant from "work" or "school" between February 16 and February 22, 2000. In addition, Defense Counsel proffered a discharge slip from the Huey P. Long Hospital.

*1092 The trial court denied the motion for a mistrial, and closing arguments were made. The jury deliberated, and subsequently returned a verdict of guilty of possession with intent to distribute marijuana and guilty of possession with intent to distribute cocaine. The jury attempted to lodge a verdict of not guilty of conspiracy to commit possession with intent to distribute marijuana and cocaine. The trial court, however, found that that verdict was in an improper form and, thereafter, the charge was dismissed by the State. Finally, the trial court issued a bench warrant for Defendant's arrest.

On February 22, 2000, the trial court read the jury verdict to Defendant in his presence and ordered a presentence investigation report. Defendant then filed a motion for new trial. A hearing on the motion for new trial was held on March 6, 2000, after which the trial court denied Defendant's motion and refused to reconsider his ruling on Defendant's motion for mistrial. Defendant was subsequently sentenced to twenty years at hard labor, with five years suspended conditioned on five years supervised probation for the crime of possession with intent to distribute marijuana. He was also sentenced to twenty-five years at hard labor, with ten years suspended conditioned on five years of supervised probation for the crime of possession with intent to distribute cocaine. Both sentences were ordered to run concurrently. Defendant orally moved for an appeal.

DEFENDANT'S ABSENCE AT TRIAL

In this assignment of error, Defendant argues that the trial court erred by allowing his trial to proceed in his absence. The statute governing a defendant's presence during trial proceedings is La.Code Crim.P. art. 831, which states, in pertinent part:

A. Except as may be provided by local rules of court in accordance with Articles 522 and 551, a defendant charged with a felony shall be present:
. . .
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.

However, the Louisiana Code of Criminal Procedure sets forth exceptions to the rule that a defendant must be present during a jury trial. La.Code Crim.P. art. 832 states, in part:

A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and:
(1) He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial[.]

In denying Defendant's motion for mistrial, the trial court said:

That request is denied. Just for the record, I'll state that yesterday through my communications with the hospitals, even though Mr. Graves had some sort of purported medical emergency, there were no significant findings by the Oakdale Community Hospital nor were there any significant findings by Huey P. Long Hospital. And the doctor's excuse which you showed me is simply a *1093 generic excuse which says, "Please excuse Mr. Graves from work or school." And then it just goes on to say for the week of February 16th through 22nd, 2000, with the notation that the plaintiff needs—the patient needs rest. So the Court does not find that there is any medical emergency which would prevent Mr. Graves from presenting for trial. Inasmuch as we're in the middle of the trial, the Court is of the opinion that he is voluntarily absent from trial and we will proceed with his absence.

At the conclusion of the hearing on his motion for new trial, the trial court denied the Defendant's motion giving the same reasons for its denial of the motion for mistrial.

The article governing a motion for a new trial is La.Code Crim.P. art. 851, which states, in pertinent part:

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Cite This Page — Counsel Stack

Bluebook (online)
798 So. 2d 1090, 2001 WL 1161168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-graves-lactapp-2001.