State v. Handy

154 So. 3d 9, 13 La.App. 3 Cir. 729, 2014 WL 550842, 2014 La. App. LEXIS 336
CourtLouisiana Court of Appeal
DecidedFebruary 12, 2014
DocketNo. 13-729
StatusPublished

This text of 154 So. 3d 9 (State v. Handy) 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. Handy, 154 So. 3d 9, 13 La.App. 3 Cir. 729, 2014 WL 550842, 2014 La. App. LEXIS 336 (La. Ct. App. 2014).

Opinion

GREMILLION, Judge.

| defendant, Sidney John Handy, approached a security guard from behind at a bus terminal in Lafayette, Louisiana, and tried to forcefully remove her gun from its holster. Unsuccessful, Defendant gave up, lay on the ground, and asked the security guard to handcuff him. The security guard backed away, and Defendant got up and walked away.

Defendant was charged by bill of information with one count of attempted simple robbery, a violation of La.R.S. 14:27, and several other crimes unrelated to this appeal. He pled not guilty. Pursuant to a motion filed by Defendant, the trial court ordered the appointment of a sanity commission to evaluate Defendant’s capacity to proceed to trial and to evaluate his mental condition at the time of the offense. The trial court found Defendant competent to proceed to trial. The trial court ordered the appointment of a second sanity commission. The minutes also indicate that Defendant advised the court that he wished to represent himself. Defendant was, again, found competent to stand trial.

At trial, Defendant informed the trial court that he wanted to terminate his lawyer and represent himself. Defendant proceeded with trial, allowing defense counsel to cross-examine witnesses and give a closing statement. At the conclusion of trial, the jury found Defendant guilty as charged of attempted simple robbery. Subsequently the trial court sentenced Defendant to three and one-half years at hard labor. The State filed a multiple offender bill against Defendant. The record, however, contains no disposition of the multiple offender bill. Defendant now appeals and alleges that the evidence was insufficient to convict him of simple robbery. For the following reasons, we affirm Defendant’s conviction.

TERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there is one possible error patent concerning the right to counsel and another easily remedied [11]*11error patent concerning the failure to advise Defendant of the time period for filing an application for post-conviction relief.

First, the court minutes of trial indicate that Defendant represented himself with the help of appointed counsel. The minutes indicate that after Defendant expressed his desire to represent himself, the court advised Defendant of his rights and advised against self-representation. Defense counsel was relieved of his obligation to represent the Defendant but chose to remain in court.

In conducting an error patent review of the waiver of the right to counsel, this court would traditionally begin by examining the adequacy of the waiver. This is because before a court can allow a defendant to give up his constitutionally-protected right to counsel, the waiver must be given “knowingly and intelligently.” Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Occasionally, a criminal defendant desires to represent himself but also have an attorney as his “advisor.” In such a circumstance, the law, nevertheless, requires that the defendant “must knowingly abandon his right to be represented by counsel.” State v. Dupre, 500 So.2d 873, 876-78 (La.App. 1 Cir.1986), unit denied, 505 So.2d 55 (La.1987).

In the present ease, at the beginning of trial, Defendant indicated that he did not wish to have an attorney representing him. The trial court explained that he did not have the right to choose court-appointed counsel but that he did have a right to hire a lawyer or represent himself. Although the trial court advised against selfjrepre-sentation,3 Defendant indicated that he wanted to represent himself. The trial court told the appointed counsel he would have him “hang around.” Counsel indicated that he would stay and perhaps could help. At Defendant’s request, counsel conducted the voir dire of the prospective jurors. He then informed the court that after discussion with Defendant, he wished to waive opening statement, and Defendant agreed. During the course of trial, defense counsel responded to questions asked by the trial court, raised all defense objections, questioned all witnesses, reviewed the proposed jury charges, requested inclusion of another offense on the verdict form, gave the closing argument, and requested polling of the jurors when the verdict was returned.

In this case, counsel did not serve as a mere “advisor” but as the controlling strategist in the case. Essentially, Defendant stepped aside and allowed counsel to do everything despite his earlier request to represent himself. Under these circumstances, no error patent occurred.

Next, the record does not indicate that the trial court advised Defendant of the prescriptive period for filing an application for post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof in the record indicating that Defendant received the 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.

^SUFFICIENCY OF THE EVIDENCE

Defendant alleges that the evidence was insufficient to convict him of attempted simple robbery. Specifically, Defendant argues that there was no evidence that Defendant intended to take the gun away from the security guard. At most, Defendant contends, he is guilty of simple battery. This court has stated the follow[12]*12ing regarding the standard for reviewing a claim of insufficient evidence:

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La. Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27).

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Related

McDaniel v. Brown
558 U.S. 120 (Supreme Court, 2010)
Faretta v. California
422 U.S. 806 (Supreme Court, 1975)
Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. Mussall
523 So. 2d 1305 (Supreme Court of Louisiana, 1988)
State v. Captville
448 So. 2d 676 (Supreme Court of Louisiana, 1984)
State v. Smith
661 So. 2d 442 (Supreme Court of Louisiana, 1995)
State v. Leger
936 So. 2d 108 (Supreme Court of Louisiana, 2006)
State v. Stone
615 So. 2d 38 (Louisiana Court of Appeal, 1993)
State v. Robertson
680 So. 2d 1165 (Supreme Court of Louisiana, 1996)
State v. Roe
903 So. 2d 1265 (Louisiana Court of Appeal, 2005)
State v. Lubrano
563 So. 2d 847 (Supreme Court of Louisiana, 1990)
State v. Pigford
922 So. 2d 517 (Supreme Court of Louisiana, 2006)
State v. Young
800 So. 2d 847 (Supreme Court of Louisiana, 2001)
State v. Dupre
500 So. 2d 873 (Louisiana Court of Appeal, 1986)
State v. Lambert
720 So. 2d 724 (Louisiana Court of Appeal, 1998)
State v. Ryan
969 So. 2d 1268 (Louisiana Court of Appeal, 2007)
Leger v. Louisiana
127 S. Ct. 1279 (Supreme Court, 2007)
State v. Strother
49 So. 3d 372 (Supreme Court of Louisiana, 2010)
State v. Francis
111 So. 3d 529 (Louisiana Court of Appeal, 2013)

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Bluebook (online)
154 So. 3d 9, 13 La.App. 3 Cir. 729, 2014 WL 550842, 2014 La. App. LEXIS 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-handy-lactapp-2014.