State v. Roberts

569 So. 2d 671, 1990 WL 166903
CourtLouisiana Court of Appeal
DecidedOctober 31, 1990
Docket21,884-KA
StatusPublished
Cited by7 cases

This text of 569 So. 2d 671 (State v. Roberts) 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. Roberts, 569 So. 2d 671, 1990 WL 166903 (La. Ct. App. 1990).

Opinion

569 So.2d 671 (1990)

STATE of Louisiana, Appellee,
v.
George Eugene ROBERTS, Appellant.

No. 21,884-KA.

Court of Appeal of Louisiana, Second Circuit.

October 31, 1990.

*672 Geary S. Aycock, and Joseph Abraham, Jr., West Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., William R. Coenen, Jr., Dist. Atty., Penny Wise-Douciere Asst. Dist. Atty., Rayville, for appellee.

Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.

NORRIS, Judge.

The defendant, George Eugene Roberts, was charged by bill of information in Richland Parish with knowingly or intentionally possessing 60 lbs. or more, but less than 2,000 lbs., of marijuana. LSA-R.S. 40:966 E(1). His nephew, Jerry Ruth, was charged as codefendant on the same bill. At arraignment, defendants were represented by counsel from West Monroe. Shortly afterward, an attorney from Roberts's hometown of El Paso, Texas filed a motion to enroll as counsel of record in association with local counsel. The trial court took no action on this motion. Several continuances were granted, first because the state had not yet complied with discovery, later because Roberts suffered a heart attack in January 1989 and finally because of a conflict in the Texas counsel's trial schedule. A few days before the trial in September 1989, the defendants appeared in district court with their Texas attorney, whom they designated as lead counsel, for hearings on motions to continue, quash and suppress; local counsel was also present. The district court refused to let Texas counsel represent the defendants. The court also denied the defense's motion for continuance, and the defendants proceeded through the hearings and trial with local counsel. The jury acquitted Ruth but found Roberts guilty as charged. The trial court subsequently sentenced Roberts to 15 years at hard labor, the maximum for this offense. Roberts now appeals, advancing 18 assignments of error. Two closely related arguments, dealing with the denial of counsel of choice and denial of continuance, present reversible error. We therefore reverse the conviction and sentence on these grounds, pretermit discussion of the other assignments, and remand the case for a new trial with counsel of the defendant's choice.

Facts and procedural history

Roberts and Ruth were arrested on April 28, 1988. Trooper Coleman stopped Roberts's pickup truck on Interstate 20 for a traffic offense. Ruth, who was driving at the time, was ticketed for following too close behind an 18-wheeler in a two-lane construction zone. Officer Coleman thought he smelled marijuana around the rear of the truck; he also thought Ruth and Roberts looked nervous and gave inconsistent statements about their destination; for these reasons Coleman asked Roberts for permission to search the truck. Roberts gave his consent. In the covered camper portion of the truck officers found two cardboard boxes containing 13 bales of marijuana tightly wrapped in duct tape. In the front seat officers found two loaded pistols partly concealed under seat cushions. Roberts, a 51-year old retired Army Master Sergeant and now a realtor and civic leader in El Paso, consistently denied knowing that the boxes contained contraband; he testified he thought he was hauling household goods as a favor for a fellow serviceman who had recently been transferred from El Paso to Norfolk, Virginia.

*673 The bill of information did not issue until August 17, 1988. On that date both defendants appeared for arraignment with retained counsel, Mr. Geary Aycock of West Monroe. They pled not guilty; Mr. Aycock filed various written motions, including a motion to suppress and motions for discovery and production. On September 16 Mr. Joseph Abraham of El Paso, a Texas attorney not licensed in Louisiana, filed a motion to enroll as counsel of record for both defendants. He later testified that shortly after their arrest, Roberts and Ruth retained him to defend this case; and that he got in contact with Mr. Aycock, who agreed to serve as local counsel and arrange for Mr. Abraham to enroll as lead counsel. There is no evidence in this record to contradict the defendants' assertion that they hired Mr. Abraham first and intended him to serve as lead counsel. The trial court, however, took no action on his motion to enroll at this time.

Pretrial motions were continued on several occasions. Hearing on the motion to suppress was continued on January 19 by joint motion, apparently because the state had not yet complied with the motions for discovery and production, and on February 14 without opposition by the state, apparently because Roberts had suffered a heart attack in January. See Minute Entry, 2/15/89, R. p. 2. The state filed its answer to discovery on March 23. Joint motions to continue were also granted on March 29 and June 29; the latter was granted because Mr. Abraham, designated as lead counsel, had a conflict in federal court. Also on June 29, hearings on the pending motions were set for September 13 and trial for September 18, 1989. Up to this point Mr. Aycock had handled all motions for continuance. On September 5, however, Mr. Abraham filed a motion to continue the trial, citing a conflict with his federal trial schedule for September 18 and 19, 1989. This motion was also set for hearing on September 13.

On September 13 the defendants and both counsel appeared in district court. Judge Chet Traylor was presiding; the case had been reassigned from Judge Glen Strong. Mr. Abraham stated that he had a trial in federal court on September 18 but he was otherwise ready to proceed with the motions.[1] The assistant district attorney, Ms. Douciere, argued that the case had been continued several times already, always as a "courtesy" to the defense, and that the state vehemently objected to any further continuance. Judge Traylor then asked Mr. Abraham if he was licensed to practice in Louisiana. Mr. Abraham said no, but explained he thought he had complied with all the requirements to practice in this case. The court told him peremptorily that he could not participate in the case. R.p. 127. The court then summarily denied the motion to continue without any articulation of reasons.

Later in the hearing on the motion to suppress, the court reiterated its ruling and firmly admonished Mr. Abraham, "You are not a licensed attorney in the State of Louisiana and you are not going to participate." R.p. 222. The court offered to let Mr. Abraham sit at counsel table and "consult" with Mr. Aycock, just as it was letting the district attorney, Mr. Coenen, "consult" with Ms. Douciere, but denied him any meaningful role in the defense. In fact, Mr. Coenen spoke up several times at the hearing; when Mr. Aycock objected that he was being "double teamed," the court remarked, "I can't see what harm it's doing." R.p. 221.

Mr. Aycock tried the remaining motions alone. The defendants' motion to suppress was denied; the state's motion to quash a defense subpoena was granted. Before trial began, Mr. Aycock filed additional defense motions to continue, to recuse Judge Traylor, to sever as to defendants and a supplemental motion to suppress the fruits of the search. Mr. Aycock argued that *674 because Mr. Abraham would not be allowed to participate, the defense needed time to secure additional counsel. These motions were denied.

At the hearing on the motion to recuse, Judge Strong presided. In support, Mr. Aycock testified to a conversation between himself and Judge Traylor outside the courtroom on September 13. According to Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
569 So. 2d 671, 1990 WL 166903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-roberts-lactapp-1990.