State of Louisiana v. Nytilex Jones

STATE OF LOUISIANA * NO. 2019-KA-0440

VERSUS * COURT OF APPEAL

NYTILEX JONES * FOURTH CIRCUIT

* STATE OF LOUISIANA

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DLD

DYSART, J., DISSENTS, WITH REASONS

I respectfully dissent from the majority opinion, as I find that the defendant,

Nytilex Jones, manipulated and undermined the judicial process in an attempt to

avoid conviction for a particularly heinous and cold-blooded murder.

The record indicates that both trial court judges who handled this matter

were aware of the defendant’s history and his previous attempts to avoid

prosecution. For example, while this matter was pending in Division “C” of

Criminal District Court, the defendant fired several court-appointed attorneys,

prompting the State to request a competency evaluation and hearing. At the

hearing, at which Mr. Jones was represented by counsel, the doctors reported that

the defendant refused to answer simple questions. The doctors testified that this

lack of cooperation prevented them from doing a proper evaluation, although one

doctor opined that the defendant was competent. Out of an abundance of caution,

the trial court ordered a second evaluation, although it rejected the doctors’

recommendation that the defendant be remanded to a psychiatric facility for further

observation. The court stated that it believed the defendant was malingering. Mr.

Jones then filed pro se a motion to suppress video evidence of the crime,

questioning the authenticity of the evidence. The court explained to the defendant

that it would not rule on his motion until his competency was determined.

A month later, a second hearing was scheduled, but Mr. Jones appeared

without counsel having once again fired his court-appointed attorney. At the re-

scheduled hearing, where the defendant appeared with counsel, both doctors

testified that the defendant was competent to proceed to trial. The court warned

the defendant to stop firing his attorneys or he would have to represent himself.

Mr. Jones acknowledged that he understood the warning.

The morning of trial, counsel for the defendant filed a motion to recuse the

trial judge, which was granted. The case was re-allotted to Section “K.”

Despite his acknowledgment of the warning from the Section “C” judge, on

November 21, 2017, Mr. Jones (who had already fired two attorneys since the

transfer), told the court he wished to fire his latest attorney and to represent

himself. The court questioned Mr. Jones further about self-representation, to

which he replied, “I ain’t representing myself neither. I got nothing to say about

nothing.” The court continued to question Mr. Jones in an attempt to determine his

true wishes. Mr. Jones said he wanted an attorney, but not someone from the

public defender’s office. The court explained that he had no choice as he did not

have the means to pay an attorney, and told the current attorney to appear or to

have someone else from the public defender’s office appear on November 28,

2017, to determine counsel.

On November 28, Mr. Jones again refused to have the public defender

represent him at a competency hearing. The court explained that Mr. Jones’

choices were to hire private counsel, accept a public defender or represent himself.

Mr. Jones insisted that he would not represent himself because he was not a

lawyer. He complained that all of the public defenders were complicit with the

State in introducing an altered surveillance video. The court again explained that if

Mr. Jones could not afford private counsel and refused a public defender, he was

effectively giving up his right to counsel.1 The court ultimately declared that Mr.

Jones had voluntarily waived his right to counsel, to which Mr. Jones replied he

would attempt to hire one. The court allowed the latest public defender to

withdraw, and proceeded to conduct a third competency hearing, receiving

testimony from an expert hired by the public defender’s office.

Dr. Sarah DeLand testified that in addition to examining the defendant, she

had spoken with several of his prior attorneys, his mother and two sisters.

Although she found him rational and informed as to the charges against him and

the possible penalties, she nonetheless found him to suffer from paranoid delusions

that would affect his ability to assist counsel. Dr. DeLand acknowledged the

possibility that Mr. Jones was malingering, but based upon the fact that Mr. Jones

received disability checks since his childhood, which she presumed were for

mental health problems, she erred on the side of caution. The trial court accepted

Dr. DeLand’s recommendation that another competency commission be appointed.

Following the hearing, the trial court inquired of Mr. Jones’ mother if the

family could afford an attorney. She stated it could not. The trial court then

informed Mr. Jones that he would be representing himself at the next hearing, to

which Mr. Jones replied he did not want to represent himself.

On December 19, 2017, Drs. Richoux and Salcedo reported to the court that

they had conducted another evaluation of Mr. Jones, and that he had refused to

allow assistance from a public defender at the examination, and had refused to

answer any of the doctors’ questions. Dr. Richoux, who had now examined Mr.

Jones several times, told the court that he reviewed his previous notes and Dr.

DeLand’s findings, and spoke to one of the former public defenders. He opined

that Mr. Jones’ concerns about the surveillance camera footage being altered could

1
Mr. Jones insisted that he had a right to a pro bono attorney from a law school. The record
reflects that Loyola Law School had been involved in the case early on, but was fired by Mr.
Jones. The court stated for the record that Tulane Law School was contacted, but was unable to
handle the case.

be viewed as delusional, but admitted that it could also be “a purposeful attempt to

delay legal proceeding,” or simply “a massive form of denial.” Dr. Richoux

ultimately testified that in his opinion Mr. Jones did not suffer from any

identifiable mental illness, and recommended that the defendant be considered

competent to proceed to trial. The trial court accepted the recommendation,2 and

denied all subsequent counseled defense motions for competency hearings.

Mr. Jones’ objection to surveillance video:

It is important to note that this writer viewed the video to which Mr. Jones

objects, and reviewed Mr. Jones’ testimony at trial. Mr. Jones explained that he

knew the victim and another man, Chris Wells, for twenty years, having grown up

in the same neighborhood. He testified that at 3 a.m. on the morning of the

shooting, he was outside his house smoking a cigar when he observed Wells’

vehicle nearby with two people inside. He did not call the police, because

although he knew what “these people” were capable of, he still “goes around

them.”

Later that day, he traveled several miles to purchase a cigar at Jack’s Meat

Market, a neighborhood where Mr. Jones admitted the victim frequented. As he

turned to leave the store, he saw Wells standing outside pointing a gun at the store,

motioning to the victim. He knew these men had reputations for “selling drugs,

robbing and killing.” On cross-examination, he admitted that he could not see

either occupant of the car that he observed outside his house earlier in the morning,

but he did see the victim standing on the corner after the vehicle stopped. He

further testified that despite his knowledge of the two men’s reputation for

violence, he did not feel in danger until the victim pointed a gun at him. That is

2
A minute entry indicates that the trial court found Mr. Jones competent to stand trial. However,
the transcript does not indicate that the court made any ruling.

when he wrestled the gun away from the victim and shot him. He said he threw

the gun under a nearby house and left the scene in his own vehicle.

The video footage captured from two different cameras and vantage points,

shows Mr. Jones enter Jack’s Meat Market, purchase a cigar, exit the store, remove

a black handgun from his waistband and put it in his pants pocket. Mr. Jones

crosses the street and approaches the victim. He then pulls the gun from his pocket

and chases the victim while shooting at him. After the victim falls to the ground,

Mr. Jones stands over him and shoots him again in the head. There was no

evidence introduced at any point in these proceedings to indicate that any of the

video footage was altered.

Considering the unrefuted video evidence and Mr. Jones’ trial testimony, it

is clear to this writer that Mr. Jones’ protestations about the use of the video and

his feigned paranoia is his effort to prevent his prosecution for a cold-blooded, pre-

meditated murder.

Right to counsel:

Although it is undisputed that the Sixth Amendment to the U.S. Constitution

and Article I, §13 of the Louisiana Constitution guarantee assistance of counsel in

one’s defense, and the appointment of counsel if indigent, State v. Garcia, 09-

1578, p. 37 (La. 11/16/12), 108 So.3d 1, 28, that right is not absolute.

A defendant does not have a right to have a particular attorney appointed to

represent him. “An indigent’s right to choose his counsel only extends so far as to

allow the accused to retain counsel of his choice, if he can manage to do so, but

that right is not absolute and cannot be manipulated so as to obstruct orderly

procedure in courts and cannot be used to thwart the administration of justice.”

State v. Barker, 17-, 0469, p. 51 (La.App. 4 Cir. 5/30/18), ___ So.3d. ___, writ

denied, 18-0968 (La. 3/18/19), 267 So.3d 85, reconsideration not considered, 18-

0968 (La. 9/6/19), 278 So.3d 361 (citing State v. Leger, 05-0011), p. 43 (La.

7/10/06), 936 So.2d 108, 142; see also State v. Wille, 595 So.2d 1149, 1154 (La.

1992)(“An indigent defendant is entitled to the appointment of competent counsel,

but is not entitled to choose or decline a particular attorney.”).

In this case, Mr. Jones was incapable of hiring private counsel, therefore his

right to counsel was limited to appointments by the court. Although he argues that

his express refusal to represent himself (he did so on several occasions by filing

pro se motions), should have prevented the court from finding he validly waived

his right to counsel, the Louisiana Supreme Court has recognized “that a defendant

could waive his right to the assistance of counsel by his actions even if his verbal

protestations were to the contrary.” State v. Harper, 381 So.2d 468, 471 (La.

1980).

In Harper, supra, the defendant filed numerous pro se motions and refused

further representation by a public defendant, but instead demanded that an attorney

from the American Civil Liberties Union be appointed. The trial court explained

that the defendant could either accept his appointed counsel or hire private counsel.

After the defendant rejected both options, the court proceeded to trial with the

unrepresented defendant. As in Harper, Mr. Jones argues that forcing him to

proceed pro se deprived him of his Sixth Amendment right to counsel. Harper,

supra at 469-70.

The Supreme Court framed the issue as “whether the trial court erred in

presenting the defendant with a choice of accepting the assistance of appointed

counsel or proceeding pro se, and then forcing him to go to trial after rejecting

both alternatives. The Court reasoned:

In this case there can be no doubt that the defendant knew of his
right to the assistance of court appointed counsel. Such appointed
counsel did in fact assist the defendant in preliminary matters.
Counsel was available to the defendant at trial and the court made it
clear to the defendant that Mr. McConnell was present at trial in order

to give him whatever assistance he requested. The defendant chose to
forego that assistance. After a careful examination of the record we
conclude that the defendant’s decision was made with the knowledge
that appointed counsel was readily available to him. The refusal of
the defendant to accept the assistance of appointed counsel was a
knowing and voluntary waiver of his right to the assistance of counsel.

Id. at 471.

The Supreme Court ultimately held that “[i]n the absence of any sound

reasons for disqualification of the appointed attorney … the [trial] court had no

duty to appoint another attorney to represent the defendant,” and that “the

defendant’s refusal without good cause to proceed with able appointed counsel

amounted to a waiver of his right to counsel,” notwithstanding his express

declination to represent himself. Id.

A defendant’s failure to secure his own counsel and refusal to accept court-

appointed counsel may result in an implied waiver of his right to counsel. See

State v. Crawford, 520 So.2d 950, 952 (La. 1987). In Crawford, the defendant

demanded removal of his first two public defenders and argued on appeal that the

trial court erred in failing to appoint another attorney in the absence of a knowing

and intelligent waiver of his right to counsel. Id. At 951-52. The Supreme Court

noted the lack of sufficient colloquy between the court and the defendant regarding

defendant’s literacy, competency, understanding, and volition, and the dangers of

self-representation, but stated, “the issue is not whether the defendant made a valid

waiver. The issue is whether a defendant having had two attorneys appointed to

represent him, is entitled to the appointment of a third attorney when he expresses

his dissatisfaction with the second.” Id. At 952. The Court stated that “[a]bsent a

valid waiver, defendant was entitled to and did receive the assistance of appointed

counsel,” and, absent a showing of inadequacy or ineptness on the part of

appointed counsel, the defendant was not entitled to another appointed attorney. 3

In my opinion, the trial court in this matter sufficiently discharged its duty to

provide Mr. Jones with representation pursuant to the Sixth Amendment by

appointing a competent attorney(s) to represent him. The only reason Mr. Jones

asserted for his dissatisfaction with his representation was that the attorneys

disagreed with his theory that the surveillance video the State provided in

discovery had been reconstructed. Absent any showing that the appointed attorney

was incompetent or inept, the court was not obligated to appoint another attorney.

See Barkerm 17-0469, at p. 51 (“[Defendant] then proceeded to create a conflict

with every court-appointed attorney (by naming them in his lawsuit) until he

received private pro bono counsel. We cannot and do not sanction such tactical

maneuvers.”)

The record abundantly confirms that both trial court judges determined that

Mr. Jones’ refusal to accept counsel (and to some extent his issue with the

surveillance video) constituted an attempt to delay the proceedings and obstruct the

orderly administration of justice. It is also clear that the assistance of counsel was

repeatedly offered and refused. Thus, considering the totality of the circumstances,

I do not find that Mr. Jones was deprived of his constitutional right to assistance of

counsel and his first trial, or at the third and fourth competency hearings. See State

ex rel. Johnson v. Maggio, 449 So.2d 547, 549-50 (La. Ct. App. 1984), writ denied

sub nom. State v. Johnson, 450 So.2d 354 (La. 1984)(finding a valid waiver of the

right to counsel under the totality of the circumstances, when representation was

3
See also State v. Flanagan, 32,535, pp. 9-10 (La.App. 2 Cir. 10/29/99), 744 So.2d 718, 725
(“The question presented in the case sub judice is whether the trial judge erred in presenting
Defendant with a choice of accepting the assistance of counsel, or proceeding pro se, and in
requiring Defendant to proceed with the hearing on the habitual offender bill after he rejected
both.”)

offered and refused, and where the court found defendant’s actions were an attempt

to manipulate the proceedings).

Thus, for all of the above reasons, I find that the trial court did not deny Mr.

Jones the right to counsel at either competency hearings or trial. Rather, Mr.

Jones’ refusal to accept appointed counsel impliedly constituted a valid waiver of

his right to counsel.

Accordingly, I dissent from the majority opinion.