State v. Lay

637 So. 2d 801, 1994 WL 227322
CourtLouisiana Court of Appeal
DecidedMay 20, 1994
Docket93 KA 1063
StatusPublished
Cited by4 cases

This text of 637 So. 2d 801 (State v. Lay) 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. Lay, 637 So. 2d 801, 1994 WL 227322 (La. Ct. App. 1994).

Opinion

637 So.2d 801 (1994)

STATE of Louisiana
v.
Richard LAY.

No. 93 KA 1063.

Court of Appeal of Louisiana, First Circuit.

May 20, 1994.

*803 William R. Campbell, Jr., New Orleans, Reginald T. Badeaux, III, Covington, for plaintiff-appellee State of La.

Peter J. Garcia, Covington, for defendant-appellant Richard Lay.

Before FOIL, PITCHER and PARRO, JJ.

PITCHER, Judge.

The defendant, Richard Lay, was charged by bill of information with possession of a stolen thing valued at $100.00 or more, but less than $500.00, in violation of LSA-R.S. 14:69. He pled not guilty and, after a jury trial, was found guilty as charged. The defendant received a sentence of two years at hard labor, with credit for time served.[1] He has appealed, alleging the following seven assignments of error:

1. The trial court erred in refusing to allow the defendant to waive counsel and conduct his own defense at trial.
*804 2. The State failed to prove each element of the offense beyond a reasonable doubt.
3. The trial court erred in denying the defendant's motion for a new trial.
4. The trial court erred in denying the defendant's motion in arrest of judgment.
5. The trial court erred in denying the defendant's motion for post verdict judgment of acquittal.
6. The trial court erred in not ordering a mistrial or admonishing the prosecutor regarding comments made during closing argument.
7. The trial court erred in imposing an excessive sentence.

Assignment of error number six was not briefed on appeal and, therefore, is considered abandoned. Uniform Rules—Courts of Appeal, Rule 2-12.4.

On the morning of February 19, 1991, the defendant entered Dunaway's Mini Market in Slidell, Louisiana. He approached Randal Dunaway in the rear of the store and attempted to cash a Louisiana income tax refund check in the amount of $205.00. When asked for his identification, the defendant responded that he did not have any identification. Randal Dunaway then informed the defendant that he would have to bring the check to the front of the store to get it approved before it could be cashed. The defendant then walked to the front of the store and presented the check to Jane Dunaway. Ms. Dunaway refused to cash the check since she knew the defendant's name was Richard Lay and the name of the payee on the check was Terrell.[2] She informed the defendant that Mr. Terrell would have to bring the check into the store himself with some form of identification. At this point, the defendant did not say anything; he simply left the store with the check. The Terrells were later contacted about this incident, which led to the defendant's arrest.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, the defendant contends that the trial court erred in refusing to allow the defendant to waive counsel and conduct his own defense at trial.

The Sixth and Fourteenth Amendments of the United States Constitution guarantee that a person brought to trial must be afforded the right to assistance of counsel before he can be validly convicted and punished by imprisonment. The Sixth Amendment further grants to an accused the right of self-representation. State v. Carpenter, 390 So.2d 1296, 1298 (La.1980); State v. Dupre, 500 So.2d 873, 876-877 (La.App. 1st Cir.1986), writ denied, 505 So.2d 55 (La. 1987). In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court raised to constitutional level the right of a state criminal defendant to represent himself. Because an accused managing his own defense "relinquishes... many of the traditional benefits associated with the right to counsel," he "must `knowingly and intelligently' forego those relinquished benefits" in order to represent himself. Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541. Before an accused can choose the right to defend himself, he must make a knowing and intelligent waiver that shows he appreciates the possible consequences of mishandling the core functions that lawyers are more competent to perform. State v. Dupre, 500 So.2d at 878. "The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the *805 record will establish that "he knows what he is doing and his choice is made with eyes open."

Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). Thus, before a trial judge can allow a defendant to represent himself, he must determine whether the defendant's waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Carpenter, 390 So.2d at 1298; State v. Dupre, 500 So.2d at 878.

The bill of information was filed on April 18, 1991. The court minutes indicate that, at his arraignment on the same date, the defendant was represented by an attorney, Keith L. Ward. On May 13, 1991, Mr. Ward represented the defendant in the preliminary examination and some discovery matters. On June 24, 1991, the first day of the trial, the jury was selected. Mr. Ward represented the defendant. However, on June 25, immediately before opening statements to the jury, the defendant informed the court that he wished to speak, whereupon the following colloquy occurred:

MR. LAY:
Your Honor, may I speak?
THE COURT:
No sir. Talk to your attorney.
MR. LAY:
I might elect to—
MR. WARD:
Your Honor, again Mr. Lay has expressed his desire to terminate our representation of him in this matter.
THE COURT:
That is denied.
MR. WARD:
Thank you, Your Honor.
MR. LAY:
I have a right to represent myself.
THE COURT:
No, sir.
MR. LAY:
It is your obligation to have a hearing whether or not I am able to represent myself, of the United States Constitution, amendment six.
THE COURT:
You are under an obligation to sit there and be quiet; otherwise, I am going to have you removed from the courtroom or gagged, whichever one you want.
MR. LAY:
I require my due process rights.

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Cite This Page — Counsel Stack

Bluebook (online)
637 So. 2d 801, 1994 WL 227322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lay-lactapp-1994.