State v. Hill

64 So. 3d 801, 2011 La. App. LEXIS 464, 2011 WL 1486072
CourtLouisiana Court of Appeal
DecidedApril 20, 2011
DocketNo. 46,050-KA
StatusPublished
Cited by3 cases

This text of 64 So. 3d 801 (State v. Hill) 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. Hill, 64 So. 3d 801, 2011 La. App. LEXIS 464, 2011 WL 1486072 (La. Ct. App. 2011).

Opinion

CARAWAY, J.

|,Defendant waived both his right to counsel and his right to a trial by jury. After a bench trial, he was found guilty of second degree battery, a violation of La. R.S. 14:34.1. He was sentenced to five years in prison at hard labor without the benefit of probation, parole or suspension of sentence. Defendant now appeals, once again proceeding pro se. For the following reasons, we affirm his conviction, but amend his five-year sentence to delete the prohibition against probation or parole eligibility and affirm his sentence as amended.

Facts

On September 6, 2009, at approximately 5:30 in the afternoon, the Ouachita Parish Sheriffs Office received a call concerning a “disturbance in progress” occurring on Burton Drive in Monroe. Corporal Jack Kottenbrook immediately responded to the dispatch. When he arrived at the scene, he observed defendant, Gene Autry Hill (“Hill”), in the middle of the street, standing above and forcefully hitting his former girlfriend, Rita Thomas (“Thomas”). As soon as Hill saw the sheriffs car approach, he ran from the scene and into his house, located on Burton. Corporal Kottenbrook waited for backup before pursuing the defendant, who eventually came out of the house on his own volition. Hill was handcuffed and placed into the back of the patrol car. Corporal Kottenbrook then checked on Thomas and took photographs of her injuries. An ambulance was called to take her to the hospital for medical assistance.

[804]*804[2By bill of information, filed October 2, 2009, Hill was charged with second degree battery under La. R.S. 14:34.x.1 He was appointed counsel, but requested that he be able to represent himself. Hill was questioned by the trial court as to his competency to proceed pro se and warned against the dangers of self-representation. Hill was ultimately granted the right to waive counsel, but the trial court insisted on the appointment of a standby attorney.

The case was called for trial on March 29, 2010. However, the victim was unable to be located and absent from the courtroom.2 Because the defendant insisted that he be able to face his accuser, the trial was continued until March 31, 2010. Hill offered information concerning the victim’s whereabouts and was given permission to contact her by telephone in order to secure her presence at trial.3 At this juncture, Hill additionally waived his right to a trial by jury.

After successfully securing Thomas’s presence, trial was commenced on March 31, 2010. Both Thomas and Corporal Kot-tenbrook testified. Thomas’s testimony revealed that on September 6, 2009, the defendant held her in his home against her will for the entire day, where he hit her on the head with a shoe and on her knee with a baseball bat. She was able to escape from the residence; however, the defendant chased her, grabbed her by the neck and dragged her to the middle of the street where he proceeded |8to kick and stomp on her. She stated that she lost consciousness for a brief period of time. Photographs of Thomas’s injuries were submitted into evidence. The defendant testified in his own defense, denying the allegations against him. He admitted, however, that he attempted to get Thomas to come back into his house and that he placed his hand over hér mouth to prevent her from yelling, “call the police.” He acknowledged that Thomas was resisting his efforts. He defended his actions by asserting that his wallet was missing and that he believed Thomas had stolen it.

After the presentation of all evidence, both the state and the defendant gave closing arguments. The trial court then recited the applicable law and took the matter under advisement. After a brief recess, the court found the defendant guilty as charged. Hill subsequently filed a motion for new trial and a motion for post-verdict judgment of acquittal, both of which were denied. On June 30, 2010, the defendant was sentenced to five years in prison at hard labor to be served without benefit of probation, parole or suspension of sentence.

Hill filed a notice of appeal. The trial court once again explained the importance of counsel and that he was entitled to have the Louisiana Appellate Project represent him on appeal. Defendant insisted he continue pro se. Hill filed a litany of motions and writs relevant to this appeal, including various requests to supplement the appellate record.4

Defendant appeals his conviction, assigning five different pro se errors.

14 Discussion

I.

In his first assignment of error, Hill claims that the trial court erred in denying [805]*805his motion for a new trial. He argues that his conviction was based on the perjured testimony of Corporal Kottenbrook.

La.C.Cr.P. art. 851 provides:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

The trial court is vested with almost unlimited discretion to grant or deny a motion for new trial to serve the ends of justice, and its decision should not be interfered with unless there has been a palpable abuse of that discretion. State v. Guillory, 10-1231 (La.10/8/10), 45 So.3d 612.

|sThe only possible ground on which the defendant could seek a new trial would be under La.C.Cr.P. art. 851(5), which allows the trial court to grant a new trial in the interest of justice. Defendant complains that there is a discrepancy between the affidavit of probable cause to arrest without a warrant and the testimony of Corporal Kottenbrook. He argues that the affidavit lacks the officer’s testimony that he actually observed the defendant hitting the victim.

Under La.C.Cr.P. art. 230.2, a law enforcement officer effecting the arrest of a person without a warrant shall promptly complete an affidavit of probable cause supporting the arrest of the person. The purpose of such an affidavit is to allow for a subsequent judicial determination of probable cause. U.S. Const. amend. IV; La.C.Cr.P. art. 230.2; State v. Wallace, 09-1621 (La.11/6/09), 25 So.3d 720.

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Cite This Page — Counsel Stack

Bluebook (online)
64 So. 3d 801, 2011 La. App. LEXIS 464, 2011 WL 1486072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hill-lactapp-2011.