State of Louisiana v. Matthew Chester

STATE OF LOUISIANA * NO. 2020-K-0124

VERSUS *
COURT OF APPEAL
MATTHEW CHESTER *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 543-703, SECTION “B”
Honorable Tracey Flemings-Davillier, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Sandra Cabrina Jenkins)

Leon A. Cannizzaro, Jr., District Attorney
Kyle Daly, Assistant District Attorney
ORLEANS PARISH
619 S. White Street
New Orleans, Louisiana 70119

COUNSEL FOR RELATOR/STATE OF LOUISIANA

Frank G. DeSalvo
Shannon R. Bourgeois
FRANK G. DESALVO, APLC
739 Baronne Street
New Orleans, Louisiana 70113

COUNSEL FOR RESPONDENT/DEFENDANT

WRIT GRANTED; RULING REVERSED

MAY 20, 2020

SCJ
TFL
JCL

The State seeks review of the trial court’s January 16, 2020 ruling granting

the defendant’s “Motion to Reopen Trial” that was filed two months after the trial

court found the defendant guilty of domestic abuse battery. For the following

reasons, we find the trial court erred in granting the defendant’s motion and ruling

that the trial be reopened after the verdict was rendered. Consequently, we grant

the State’s writ, reverse the trial court’s ruling, and reinstate the defendant’s

conviction.

PROCEDURAL BACKGROUND1

On September 6, 2019, the defendant appeared for a bench trial on one count

of domestic abuse battery, a violation of La. R.S. 14:35.3. During the trial, the

State presented the testimony of two witnesses, the responding New Orleans Police

Department officer and the victim. Following the State’s submission of testimony

and evidence, defense counsel announced that, “after conferring with [the

1
The facts of the case are not relevant to the issue presented for review.

1

defendant] and [co-counsel]” the defense rested; thus, the defendant did not testify.

At the conclusion of the trial, the trial court found the defendant guilty as charged.2

On September 20, 2019, attorney Frank DeSalvo enrolled as counsel of

record for the defendant. On November 8, 2019, the defendant filed a “Motion to

Reopen Trial,” moving for his trial to be reopened so that he could testify. The

defendant noted that the trial transcript did not include an affirmative record that

the defendant voluntarily waived his right to testify on his own behalf. Notably,

the defendant did not allege that he was precluded from testifying by his counsel or

otherwise.

On January 16, 2020, the parties appeared for a hearing on the defendant’s

motion. Defense counsel acknowledged that while the Code of Criminal

Procedure is silent regarding the reopening of a trial after verdict, he argued that

“the case law, for federal and state, clearly dictate that this court should reopen this

matter so that the defendant could testify on his own behalf.” The trial court then

inquired whether it was the defendant’s contention that he would have testified or

would have wanted to testify “but for the advice or control of his counsel?”

Defense counsel replied, “[t]hat’s correct.” The trial court then stated its ruling as

follows:

So again, both parties are correct obviously there is no code or
article that governs reopening a trial.
However, there’s very strong, interestingly enough, very strong
case law; jurisprudence from both the Louisiana Supreme Court, as

2
The trial court set the sentencing hearing for October 4, 2019, and set a $1000 sentencing bond
for the defendant. The defendant was released on the sentencing bond and a protective order.
Subsequently, new counsel enrolled and filed motions to continue the sentencing hearing. To
date, the defendant has not been sentenced.

2

well as federal court that the court has looked at, in terms of its
research, and both cases have been cited and discussed in defense
counsel’s motion, and those cases basically are favorable to reopening
cases and has [sic] deemed that a court that refuses to reopen a case to
allow a defendant to testify when the allegation or claim is that the
defendant was precluded from testifying based on defense counsel’s
position, or wishes, or control over that case have been reversed, and
they’ve been found to be very prejudicial – rulings of the trial court –
and failing to reopen a case have been found to be prejudicial, so
based on the jurisprudence by the Louisiana Supreme Court, and other
similar cases, the court is going to grant the defendant’s motion.

Following the trial court’s ruling, the State noticed its intent to seek

supervisory review and requested that a stay be issued. The trial court granted the

State’s motion for a stay. The State’s timely writ followed.

DISCUSSION

The State submits that the trial court erred in granting the defendant’s

motion to reopen the trial to allow the defendant to testify, because the trial court

has no authority to reopen a criminal trial after a verdict has been rendered. Based

upon our review of the applicable law and jurisprudence, as discussed below, we

agree that the trial court exceeded its authority by reopening the trial to allow

additional testimony after a verdict was rendered. Moreover, even if the

defendant’s motion were procedurally proper, the defendant failed to establish

even a prima facie case that his right to testify had been deprived.

Trial Court Authority to Reopen a Trial

The Code of Criminal Procedure provides particular procedures by which a

defendant may seek to vacate a conviction: a motion for new trial, pursuant to La.

C.Cr.P. art. 851 et seq.; a direct appeal, pursuant to La. C.Cr.P. art. 911 et seq; and

an application for post-conviction relief, pursuant to La. C.Cr.P. art. 926 et seq.

3

However, as both parties and the trial court acknowledged, the Code of Criminal

Procedure does not recognize a motion to reopen trial nor provide any procedure

for reopening a trial after a verdict has been rendered.

The defendant argues, however, that his right to testify at trial is

fundamental, that the deprivation of that right is so prejudicial that it cannot be

harmless error, and that the only recourse is the reopening of trial to allow his

testimony. In support of his arguments, the defendant cites to State v. Dauzart, 99-

3471 (La. 10/30/00), 769 So.2d 1206. However, we find that Dauzart fails to

support any argument for reopening a trial for testimony after a verdict has been

rendered.

In Dauzart, the defense moved, during a jury recess, to reopen its case for

the defendant to testify, shortly after announcing that the defense had rested, and

prior to closing arguments and the charging of the jury. 99-3471, p. 4, 769 So.2d

at 1209. In finding that the trial court abused its discretion by refusing to allow the

defense to reopen its case under those circumstances, the Louisiana Supreme Court

stated that the “slight deviation from normal practice would have had no impact on

the orderly flow of trial from jury selection to verdict.” Id., p. 2, 769 So.2d at

1208. However, the Louisiana Supreme Court’s discussion of an accused’s right to

testify at trial made clear that, “[w]hile ‘there is no justification for a rule that

denies an accused the opportunity to offer his own testimony,’ the accused’s right

to testify is not unqualified and ‘may, in appropriate cases, bow to accommodate

other legitimate interests in the criminal trial process.’” Id., p. 1, 769 So.2d at

4

1207-08 (quoting Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2708, 97

L.Ed.2d 37 (1987)). The Court further stated that procedural and evidentiary rules

governing the orderly conduct of trial, such as Louisiana’s procedural rule limiting

testimony to the evidentiary stage of trial, “do not offend the defendant’s right to

testify” because such a rule of procedure “simply imposes a commonsense

requirement that the right to testify be exercised in a timely fashion.” Dauzart, 99-

3471, p. 1, 769 So.2d at 1208 (internal citations omitted); see La. C.Cr.P. art.

765(5).

As noted by the Court in Dauzart, Louisiana law limits the introduction of

evidence and testimony to the evidentiary stage of trial, and the trial court has

discretion to permit the introduction of additional evidence prior to closing

argument. La. C.Cr.P. art. 765(5); State v. Coleman, 14-402, pp. 65-66 (La.

2/26/16), 188 So.3d 174, 220-21. Accordingly, in Coleman, the Court found no

error in the trial court’s refusal to allow the defendant’s testimony when requested

after closing arguments, because the defendant’s request was untimely. 14-402, p.

66, 188 So.3d at 221.

Thus, neither the rules of procedure nor any applicable jurisprudence allows

for the reopening of a trial for a defendant’s testimony after a verdict has been

rendered. Consequently, we find the trial court erred in granting the defendant’s

motion to reopen trial.

5

Establishing a Violation of a Defendant’s Right to Testify

The defendant also argues, in his motion to reopen trial and in response to

the State’s writ, that the trial record fails to reflect that the defendant made an

affirmative, knowing, and voluntary waiver of his right to testify or that the trial

court inquired as to whether the defendant sought to invoke his right to testify.

But, pursuant to the applicable jurisprudence, we find that the defendant fails to

establish that his right to testify was violated.

In State v. Hampton, 00-0522 (La. 3/22/02), 818 So.2d 720, on limited reh’g

(June 7, 2002), wary that a broad-based ruling on the denial of a defendant’s right

to testify could open the floodgates for post-conviction relief in any case in which

the defendant did not testify, the Louisiana Supreme Court adopted two criteria for

determining whether a defendant’s right to testify was violated or waived by his

silence at trial, stating as follows:

(1) absent extraordinary circumstances that should alert the trial court
to conflict between attorney and client, the court should not inquire
into a criminal defendant’s right to testify. The court should
assume, that a criminal defendant, by not ‘attempting to take the
stand,’ has knowingly and voluntarily waived his right;
(2) the court must consider whether the petitioner has waived his right
to testify … [The defendant can only] rebut that presumption … by
showing that his attorney caused him to forego his right to testify
[(a) by alleging specific facts, including an affidavit by the
defendant’s trial counsel] from which the court could reasonably
find that trial counsel ‘told [the defendant] that he was legally
forbidden to testify or in some similar way compelled him to
remain silent … ‘[(b) by demonstrating from the record] that those
‘specific factual allegations would be credible…’

Hampton, 00-0522, p. 14, 818 So.2d at 729-30 (quoting Passos-Paternina v.

United States, 12 F.Supp.2d 231, 239-40 (D.P.R. 1998)).

6

In this case, the defendant’s argument relies entirely on the absence of an

affirmative record that he voluntarily waived his right to testify. The defendant

fails to allege or show any extraordinary circumstances that should have alerted the

trial court to a conflict between the defendant and his trial counsel that would then

prompt the trial court to inquire into the defendant’s right to testify; and, the

defendant fails to rebut the presumption that he waived his right to testify by

alleging any specific facts demonstrating that his trial counsel compelled or

prohibited him from testifying. Thus, the defendant failed to support his claim that

his right to testify was violated.

CONCLUSION

For the foregoing reasons, we find the trial court erred in granting the

defendant’s motion to reopen the trial to allow the defendant to testify.

Accordingly, we grant the State’s writ and reverse the trial court’s ruling. In

consideration that the trial court’s ruling effectively set aside the defendant’s

conviction, we reinstate the defendant’s conviction for domestic abuse battery and

remand this matter for sentencing.

WRIT GRANTED; RULING REVERSED

7