State of Louisiana v. Clardis Edward Galloway, Jr.

Judgment rendered February 1, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,704-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

Versus

CLARDIS EDWARD GALLOWAY, JR. Appellant

*****

Appealed from the
Forty-Second Judicial District Court for the
Parish of DeSoto, Louisiana
Trial Court No. 19-CR-29946

Honorable Amy Burford McCartney, Judge

*****

LOUISIANA APELLATE PROJECT Counsel for Appellant
By: Prentice L. White

CLARDIS EDWARD GALLOWAY, JR. Pro Se

CHARLES B. ADAMS Counsel for Appellee
District Attorney

LEE R. HALL, JR.
RHYS E. BURGESS
Assistant District Attorneys

*****

Before PITMAN, STEPHENS, and MARCOTTE, JJ.

STEPHENS, J.

This criminal appeal arises out of the 42nd Judicial District Court,

Parish of DeSoto, State of Louisiana, the Honorable Amy Burford

McCartney, Judge, presiding. On September 22, 2021, defendant, Clardis

Edward Galloway, Jr., was convicted by a unanimous jury of one count of

second-degree murder, a violation of La. R.S. 14:30.1, and was sentenced to

life imprisonment by the trial court on October 14, 2021. Galloway has

appealed. Appellate counsel filed a motion to withdraw, together with a

brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.

Ed. 2d 493 (1967), alleging that there are no nonfrivolous issues on which to

base the appeal. This Court held the motion in abeyance and allowed the

defendant 30 days to file a pro se brief.

Thereafter, Galloway filed a pro se brief, urging two assignments of

error, one which contending that he was denied the effective assistance of

counsel when his attorney failed to consult with him prior to withdrawing

his plea of not guilty and not guilty by reason of insanity. Pursuant to an

order issued by this Court, appellate counsel filed a brief addressing this

issue, and the State filed a reply brief. For the reasons set forth below, we

affirm Galloway’s conviction and sentence.

FACTS/PROCEDURAL BACKGROUND

Rosemary Foley was an elderly, disabled woman who lived alone at

her home on Hwy. 191 in Logansport, Louisiana. Galloway and Aulden

Burford, Ms. Foley’s niece, lived with Ms. Foley for a while. A month

before her murder, Ms. Foley began having problems with the young couple

residing with her, so she asked them to leave. Galloway and Aulden broke

up, and Aulden left Louisiana to go live with another relative. Galloway

moved in with a friend named Douglas Tyler Williams.

On October 11, 2018, Galloway left Williams’ house to go to Ms.

Foley’s home to help her with a plumbing problem. Galloway rode

Williams’ red Honda four-wheeler rather than walking because the two

residences were approximately two miles apart. Unbeknownst to Williams,

Galloway took with him to Ms. Foley’s a Ruger .380 pistol belonging to

Williams. Sometime later that morning, Marietta Sepulvado, Ms. Foley’s

home health physical therapist, tried to contact Ms. Foley about a missed

physical therapy session. Ms. Sepulvado reached out to Ms. Foley’s sister to

find out whether she had heard from Ms. Foley. Police officers then went to

Ms. Foley’s home to perform a welfare check.

Upon their entry into Ms. Foley’s home, officers found her lying on

the floor, unresponsive, with a gunshot wound to the head. Galloway’s

wallet, containing his driver’s license, and the red Honda four-wheeler were

just outside of Ms. Foley’s house. Williams, concerned that his four-

wheeler had not been returned, showed up at Ms. Foley’s residence, where

he found his ATV and police officers.

One of the officers asked Williams to use his cell phone to call

Galloway. Williams made the call, and Galloway, who answered, realized

that the police were at Ms. Foley’s home. Shortly thereafter, Galloway

drove up in Ms. Foley’s vehicle. Galloway was taken into custody. Officers

discovered Williams’ pistol lying in the grass a short distance away from the

victim’s car.

On January 22, 2019, a DeSoto Parish grand jury indicted Galloway

for the second-degree murder of Rosemary Foley, a violation of La. R.S.
2

14:30.1. Galloway entered a plea of not guilty at his arraignment. After

reviewing Galloway’s psychological history, defense counsel advised his

client to withdraw his not guilty plea and enter a plea of not guilty and not

guilty by reason of insanity, which he did. Galloway also filed a request for

the appointment of a sanity commission. Two mental health experts were

appointed to evaluate Galloway. After they had differing opinions, the trial

court appointed a third expert to examine Galloway. Court minutes from

January 14, 2021, indicate that Galloway was found to have the mental

capacity to proceed and assist in his defense, and the trial court filed the

sanity commission reports into the record under seal.

On August 12, 2021, at the free and voluntary hearing, with Galloway

present via Zoom, defense counsel withdrew Galloway’s plea of not guilty

and not guilty by reason of insanity and entered a plea of not guilty. Jury

selection began on September 17, 2021, with the last juror being seated the

morning of September 22, 2021, after which the matter proceeded to trial.

The jury rendered a unanimous verdict of guilty of second-degree murder

that same day, and on October 14, 2021, Galloway was sentenced to the

mandatory sentence of life imprisonment without benefit of probation,

parole, or suspension of sentence.

DISCUSSION

Assignment of Error No. 1

In his first pro se assignment of error, Galloway argues that because

the indictment charged him with both subsection (A)(1) of La. R.S. 14:30.1

(the defendant had the specific intent to kill or inflict great bodily harm on

the victim) and subsection (A)(2) (the defendant was engaged in the

perpetration or attempted perpetration of an armed robbery of the victim
3

even though he had no intent to kill or to inflict great bodily harm on the

victim), his conviction was “without unanimity of the jury.” According to

Galloway, there is nothing in the record to show that he received a

unanimous verdict of either one of these “two distinct acts” or if the jury was

“split” in its decision.

The State points out that the jury rendered a unanimous verdict

convicting Galloway of second-degree murder and in fact was polled to

confirm their unanimity. As to Galloway’s “alternate theory” argument, the

State points out that a jury is not constitutionally required to agree on a

single theory to convict a defendant when it is instructed as to alternate

theories.

After closing arguments, the judge instructed the jury on both theories

of second-degree murder and manslaughter. There was sufficient evidence

from which the jury could have found Galloway guilty under either theory,

including his theft of the murder weapon, his return to the crime scene in

Ms. Foley’s car, which he took after having shot her, and his confession that

he shot the victim in the back of the head as he was just about to rob her at

gunpoint. As held by the court in State v. Seals, 09-1089, p. 81 (La. App. 5

Cir. 12/29/11), 83 So. 3d 285, 346, writ denied, 12-293 (La. 10/26/12), 99

So. 3d 53, cert. denied, 569 U.S. 1031, 133 S. Ct. 2796, 186 L. Ed. 2d 863

(2013), a jury is not required to agree on a single theory to convict a

defendant when it is instructed as to alternate theories. See also, Schad v.

Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991); State v.

Vergo, 594 So. 2d 1360 (La. App. 2 Cir. 1992), writ denied, 598 So. 2d 373

(La. 1992); State v. Chester, 19-363, pp. 123-24 (La. App. 5 Cir. 2/3/21),

4

314 So. 3d 914, 997, writ denied, 21-00350 (La. 6/8/21), 317 So. 3d 321.

This assignment of error is without merit.

Assignment of Error No. 2

Galloway and appellate counsel have both argued that Galloway was

denied effective assistance of counsel when Galloway’s trial attorney

changed Galloway’s plea from not guilty and not guilty by reason of insanity

to not guilty without consulting him, thereby abandoning his “one and only

viable defense.” According to Galloway, his attorney was aware of his long

history of mental health issues and had requested an evaluation by a forensic

psychiatrist after one of the two appointed mental health professionals found

that he lacked the capacity to proceed to trial. Both Galloway and his

appellate counsel erroneously argue that this third mental health

professional’s report is not in the record (it is),1 and that the record does not

contain the results of the sanity commission. While there apparently was no

testimony, hence no transcript, there are minutes2 indicating that on January

14, 2021, all three doctors’ reports were entered into the record, and that the

sanity commission found Galloway competent to stand trial and assist in his

defense.

According to the State, there was no deficiency in Galloway’s trial

attorney’s performance as to the defendant’s plea; even so, a claim of

1
Galloway has also claimed that he was only examined by two members of the
sanity commission, not three; according to him, he is unaware that a forensic psychiatrist
was provided to the defense. Be that as it may, Galloway was evaluated by the third
doctor on November 11, 2020, as evidenced by Dr. Sanderson’s report which, together
with the other examiners’ reports, was filed into the record as a sealed exhibit.
2
Galloway and appellate counsel have also asserted that there is no transcript
from the hearing at which trial counsel changed Galloway’s plea. There was no separate
hearing for this, as it occurred at the pretrial conference/free and voluntary hearing held
on August 12, 2021; the transcript can be found at R. pp. 617-23.
5

ineffective assistance of counsel is more appropriately raised in an

application for post-conviction relief in the trial court. See, State v. Hilliard,

52,652, p. 20 (La. App. 2 Cir. 8/14/19), 278 So. 3d 1065, 1080, writ denied,

19-01701 (La. 7/24/20), 299 So. 3d 68.

The Supreme Court set out the two-prong test for a defendant

claiming ineffective assistance of counsel in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d (1984): that counsel’s performance

was deficient; and the deficiency prejudiced his defense. State v. Hilliard,

52,652, pp. 19-20 (La. 8/14/19), 278 So. 3d 1065, 1079-80, writ denied, 19-

01701 (La. 7/24/20), 299 So. 3d 68. The State points out that Galloway’s

not guilty and not guilty by reason of insanity plea was withdrawn only after

a sanity commission, conducted pursuant to a motion by previous defense

counsel, was convened, and the evaluations resolved the issue of Galloway’s

competency to stand trial. The record shows that Galloway filed pro se

pleadings and had in-chambers colloquies with the trial judge, both before

and during trial, wherein he had rational conversations with the judge

discussing trial strategy and issues with his counsel. Galloway never raised

an issue with the plea entered by his trial attorney—had he disagreed with

the strategy of his trial counsel to change his plea (if in fact the defendant’s

allegation that his attorney did not discuss the change of plea with Galloway

is true, which the State calls “dubious”), Galloway could have raised the

issue in chambers or when his plea was read at the beginning of trial in open

court.

Both the Louisiana and federal constitutions guarantee a criminal

defendant’s right to the effective assistance of counsel. U. S. Constitution

art. VI; La. Constitution art. 1, § 13; Gideon v. Wainwright, 372 U.S. 335,
6

83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); State v. Brooks, 94-2438 (La.

10/16/95), 661 So. 2d 1333; State v. Bayles, 53,696 (La. App. 2 Cir.

11/17/21), 329 So. 3d 1149; State v. Turner, 52,510 (La. App. 2 Cir.

4/10/19), 267 So. 3d 1202, writ denied, 19-00873 (La. 9/24/19), 279 So. 3d

386; State v. Mansfield, 50,426 (La. App. 2 Cir. 2/24/16), 190 So. 3d 322.

Under the standard for ineffective assistance of counsel set out in

Strickland v. Washington, supra, adopted by Louisiana’s Supreme Court in

State v. Washington, 491 So. 2d 1337 (La. 1986), a reviewing court must

reverse a conviction if the defendant establishes that counsel’s performance

fell below an objective standard of reasonableness under prevailing

professional norms, and counsel’s inadequate performance prejudiced the

defendant to the extent that the trial was rendered unfair and the verdict

suspect. State v. Ball, 19-01674 (La. 11/24/20), 305 So. 3d 90; State v.

McGee, 18-1052 (La. 2/25/19), 264 So. 3d 445; State v. Bayles, supra; State

v. Turner, supra.

Claims of ineffective assistance of counsel are more properly raised in

an application for post-conviction relief in the trial court because this

provides the opportunity for a full evidentiary hearing under La. C. Cr. P.

art. 930. State v. McGee, supra; State v. Ward, 53,969, p. 17 (La. App. 2

Cir. 6/30/21), 324 So. 3d 231, 240. When the record is sufficient, however,

allegations of ineffective assistance of trial counsel may be resolved on

direct appeal in the interest of judicial economy. Id.; State v. Frost, 53,312

(La. App. 2 Cir. 3/4/20), 293 So. 3d 708, writ denied, 20-00628 (La.

11/18/20), 304 So. 3d 416.

Defense counsel’s choice between a plea of not guilty instead of not

guilty and not guilty by reason of insanity, as well as the decision to call
7

certain witnesses or present certain evidence at trial, relates to strategy

decisions3 and “could not possibly be reviewed on appeal.” State v. Martin,

607 So. 2d 775, 788 (La. App. 1 Cir. 1992). Decisions relating to

investigation, preparation, and strategy require an evidentiary hearing. State

v. Wise, 13-247, p. 14 (La. App. 5 Cir. 11/19/13), 128 So. 3d 1220, 1230,

writ denied, 14-0253 (La. 9/12/13), 147 So. 3d 703; State v. Martin, supra.

Only in an evidentiary hearing in the trial court, where the defendant can

present evidence beyond that contained in an inadequate record, can his

allegations be sufficiently investigated. See, La. C. Cr. P. art. 924, et seq.

An alleged error that is within the ambit of trial strategy does not establish

ineffective assistance of counsel because opinions may differ on the

advisability of such a tactic. State v. Wise, supra; State v. Singleton, 05-634

(La. App. 5 Cir. 2/14/06), 923 So. 2d 803, 811, writs denied, 05-634 (La.

2/14/06), 923 So. 2d 803, 06-1208 (La. 11/17/06), 942 So. 2d 532.

La. C. Cr. P. art. 651 provides that when a defendant enters a plea of

“not guilty,” evidence of insanity or mental defect at the time of the offense

shall not be admissible. Louisiana does not recognize the defense of

diminished capacity. State v. Dressner, 18-0828, p. 14 (La. 10/29/18), 255

So. 3d 537, 548, cert. denied, ___ U.S. ___, 139 S. Ct. 2691, 204 L. Ed. 2d

1093 (2019). A mental defect or disorder short of insanity cannot serve to

negate specific intent and reduce the degree of the crime. State v. Lecompte,

3
It is possible that trial counsel changed the defendant’s plea after two of the
three sanity commission physicians concluded that Galloway was legally sane. As noted
by the First Circuit in State v. Folse, 623 So. 2d 59, 71 (La. App. 1 Cir. 1993), once a
defendant has the assistance of counsel, the vast array of trial decisions, strategic and
tactical, which must be made before and during trial, rest with an accused and his
attorney, and the fact that a particular strategy is unsuccessful does not establish
ineffective assistance of counsel.
8

371 So. 2d 239, 243 (La. 1978); see also, La. R.S. 14:14, La. C. Cr. P. art

561.

Because of the change in Galloway’s plea from not guilty and not

guilty by reason of insanity to not guilty, expert (or lay) testimony regarding

his psychological background regarding his state of mind at the time of Ms.

Foley’s murder was not admissible. Although it is improbable, given that

the evidence of Galloway’s culpability in this case is overwhelming,4 instead

of finding him guilty of second-degree murder, the jury may have

considered this evidence to find him guilty of manslaughter which, under La.

R.S. 14:31(A)(1), is a homicide that would be murder but is committed in

the sudden passion or heat of blood immediately caused by provocation

sufficient to deprive an average person of his self-control and cool

reflection. State v. Bourque, 93-594 (La. App. 3 Cir. 2/16/94), 636 So. 2d

254, writ denied, 94-1839 (La. 1/6/95), 648 So. 2d 920. We emphasize,

however, as did the Third Circuit in State v. Bourque, that the measure of the

adequacy of the provocation to cause a defendant to act in “sudden passion

or heat of blood” is the average or ordinary person and not the peculiar

psychological characteristics of a particular defendant. Id. at 268.

In the instant case, the sanity hearing was not transcribed. Instead of

testimony, the reports of the three examining mental health professionals

were entered into the record (as is done in many such cases), and Galloway

was found competent to stand trial. Galloway was not in attendance at this

hearing on January 14, 2021, but his attorney was. COVID protocols were

4
See, e.g., State v. Morton, 483 So. 2d 174, 181 (La. App. 2 Cir. 1986), wherein,
in response to the defendant’s complaint about the trial court’s refusal to allow testimony
as to his state of mind or mental condition, this Court noted that the defendant’s recorded
statement, attempted flight from the scene, and testimony at trial “completely belie[d] any
substantive insanity or intoxication defense.”
9

still in force across the United States at that time, so this is not unusual.

While Galloway’s claim that his trial counsel did not consult with him prior

to changing his plea at the pre-trial conference/free and voluntary hearing on

August 12, 2021, is concerning, it is neither supported nor refuted by the

record in this case. As noted previously, Galloway was present, albeit via

Zoom, at the hearing at which his plea was changed. The record does not

contain either Galloway’s consent or objection to counsel’s plea change, nor

does it include a declaration by trial counsel that she consulted Galloway

prior to changing the plea.

This record does not allow us to definitively resolve Galloway’s

ineffective assistance of counsel claim. However, this case does not present

extraordinary circumstances supporting a remand to the trial court at this

juncture.5

5
As this Court noted in State v. Mansfield, 50,426, p. 8 (La. App. 2 Cir. 2/24/16),
190 So. 3d 322, 328, “[I]n extraordinary circumstances, appellate courts have taken a
third approach on appeal and remanded an ineffective assistance claim for an evidentiary
hearing.”

In State v. Bayles, 53,696 (La. App. 2 Cir. 11/17/21), 329 So. 3d 1149, the
defendant’s ineffective assistance of counsel claim was, inter alia, a conflict of interest
arising from an agreement between the district attorney’s office and the public defender’s
office for the district attorney’s office to fund the public defender’s office. This Court,
finding there were extraordinary circumstances, remanded the matter to the trial court,
and observed:
This defendant has suffered through inordinate delays, none of which were
his fault, in this case. He has had four court-appointed attorneys, and
more than once during this debacle, defendant was unrepresented and
unable to consult with an attorney at all. Defendant felt so unheard that he
reached out not once but twice to the DeSoto Parish Clerk of Court to
express not only his concerns about conflict of interest issues, but
regarding pending motions and delays in his case that were not attributable
to him[.] [I]t does not appear on this record that [defendant’s counsel]
even questioned the possibility of raising such a conflict on behalf of his
client the second time he was appointed to represent defendant. What
concerns this Court the most, however, is the fact that, despite the trial
court’s reassurances to defendant to the contrary, it appears, on this
record, that none of defendant’s attorneys investigated the allegations he
made against the District Attorney which, if meritorious and proven by
defendant, after a contradictory hearing held triggered by a motion to
recuse filed by defense counsel, would have mandated the District
Attorney’s recusal prior to trial.
10

State v. Bayles, 53,696, pp. 25-26 (La. App. 2 Cir. 11/17/21), 329 So. 3d 1149,
1162.

In State v. Mansfield, supra, the defendant complained that his trial attorney’s
failure to object to the prosecutor’s repeated reference to defendant’s post-Miranda
silence (a Doyle violation) constituted ineffective assistance of counsel. The Second
Circuit found the evidence in the appellate record “sufficiently compelling to conclude
that the interest of justice and judicial economy” would be best served by a remand for an
evidentiary hearing at that time, rather than post-conviction, because of the length of the
proceedings (the offense occurred in 2010, the defendant was incarcerated approximately
34 months before his trial in September 2013, an out-of-time appeal was not granted until
May 2015, and his appeal was not heard by the appellate court until early 2016) and
indications of other possible acts of ineffective assistance found in the record. State v.
Mansfield, 50,426, pp. 19-20 (La. App. 2 Cir. 2/24/16), 190 So. 3d 322, 333.

In State v. Taylor, 44,367, p. 9 (La. App. 2 Cir. 9/23/09), 20 So. 3d 1157, 1162,
this Court remanded an effective assistance of counsel claim to the trial court, observing:
The record reflects multiple statements from the trial judge evidencing his
serious concerns about the effectiveness of Defendant’s trial counsel.
These statements require inquiry into whether Defendant was
constructively deprived of effective assistance of counsel at one or more
of the critical stages of his proceedings. Whether there was such a
deprivation impacts our review of each of Defendant’s assignments of
error. We conclude, therefore, that the trial court erred in summarily
denying Defendant’s motion for new trial based on ineffective assistance
of counsel. In this case, the record alone is inadequate to fairly resolve
this issue, and, accordingly, we remand the matter for a contradictory
hearing.

In State v. Howard, 09-928 (La. App. 5 Cir. 5/25/10), 37 So. 3d 1099, aff’d as
amended, 10-869 (La. App. 5 Cir. 5/24/11), 66 So. 3d 1160, writ denied, 11-1468 (La.
4/9/12), 85 So. 3d 135, because the Fifth Circuit was already remanding the matter to the
trial court for resolution of several other issues, the Court, having found the record
sufficient to address some, but not all, of the defendant’s ineffective assistance of counsel
claims, included in its disposition a remand for a contradictory hearing on the claims of
ineffective assistance claims to allow him to develop an adequate record.

In State v. Lee, 00-0183 (La. App. 1 Cir. 2/16/01), 788 So. 2d 452, writ denied,
00-1611 (La. 3/30/01), 788 So. 2d 442, the defendant, convicted of second-degree murder
and sentenced to life imprisonment, alleged that his trial counsel was ineffective because
of a conflict of interest between his representation of the defendant at trial and his
previous representation of a witness who testified against the defendant at his trial. In
fact, as noted by Justice Weimer (then a judge on the First Circuit) in his concurrence,
“[t]he defendant’s former attorney, with whom he had a relationship of confidentiality,
subsequently represented his accuser. At trial, the defendant’s attorney [was] his
accuser’s former attorney.” State v. Lee, 00-0183, p. 1 (La. App. 1 Cir. 2/16/01), 788 So.
2d 452, 458, writ denied, 00-1611 (La. 3/30/01), 788 So. 2d 442. The fact that the
defendant and the witness would present antagonistic defenses was recognized on the
record by both defense counsel and the State after the preliminary hearing, and a joint
request for severance of the trials was granted. The First Circuit observed that without an
evidentiary hearing, however, there is no way to evaluate the propriety of counsel’s
failure to raise the issue of a potential conflict, of which the attorney was clearly aware,
with his client prior to trial. Because it could not be determined whether such a conflict
was waived, the Court remanded the matter to the trial court for a full evidentiary hearing
at that time. State v. Lee, 00-0183, pp. 7-8 (La. App. 1 Cir. 2/16/01), 788 So. 2d 452,
456-57, writ denied, 00-1611 (La. 3/30/11), 788 So. 2d 442.
11

The case cited by appellate counsel, State v. Starks, 20-429 (La. Ap. 5

Cir. 11/3/21), 320 So. 3d 1192, is factually inapposite. In State v. Starks, the

defendant went to trial having changed his plea from not guilty to not guilty

and not guilty by reason of insanity. Despite this plea, however, the

defendant’s attorney did not present any evidence regarding defendant’s

mental condition or sanity. On appeal, the defendant urged that his attorney

provided ineffective assistance of counsel. According to the defendant, by

changing his plea to not guilty and not guilty by reason of insanity, his trial

attorney “took on a burden of proof to establish by a preponderance of the

evidence that defendant was not sane at the time of the offense, but counsel

failed to act or have a strategy.” Defendant claimed that his attorney didn’t

ask him any questions about his mental condition when he was on the stand,

and pointed out that such questions could have been based on Dr. Salcedo’s

examination of the defendant and reports (Dr. Salcedo was one of two

mental health professionals who served on a sanity commission which found

the defendant sane at the time of the offense and capable of standing trial).

Trial counsel further failed to say anything about the defendant’s sanity

during closing arguments, but “simply let the judge read the instructions on

his burden of proof on sanity and allowed the State to comment on

defendant’s sanity.” The defendant urged that this plea should have been

abandoned if his attorney had no intention of supporting it, and counsel’s

silence throughout the trial constitutes a deficient performance. State v.

Starks, 20-429, pp. 7-8 (La. App. 5 Cir. 11/3/21), 330 So. 3d 1192, 1198.

The Fifth Circuit pointed out in State v. Starks, that it was not clear

from the record whether counsel was ineffective in failing to formally

abandon the defense of insanity by withdrawing the defendant’s plea
12

because the record did not contain the transcripts of the sanity commission

hearings from which the Court could ascertain the possible expert witness

testimony available to the defendant. The Court cited State ex rel. Busby v.

Butler, 538 So. 2d 164, 168 (La. 1988), wherein the Louisiana Supreme

Court declined to address a claim of ineffective assistance of counsel in

similar circumstances when it found that it was “clear from the record such a

defense would not have succeeded,” the supreme court having been

persuaded by expert testimony presented at a prior evidentiary hearing

which “showed even the most favorable interpretation of his psychiatric

records would not have shown him insane under Louisiana law.” Thus, the

Fifth Circuit found that, “from the record before us, a complete

understanding of the abandonment of the insanity defense cannot be gained

for a determination of whether ineffective assistance of counsel occurred.

With this insufficiency in the present record, we find this matter more

properly lends itself to the presentation of evidence at a post-conviction

hearing.” State v. Starks, 20-429, pp. 10-11 (La. App. 5 Cir. 11/3/21), 330

So. 3d 1192, 1200.

The problem in the instant case is not missing transcripts; the record

in fact contains the sanity commission reports from all three mental health

professionals who examined the defendant. The issue instead is, as noted

above, whether defense counsel consulted with the defendant prior to the

plea change. Because the record contains nothing that would allow this

Court to determine the merits of Galloway’s ineffective assistance of

counsel claim at this juncture, he may re-urge this claim in future post-

conviction proceedings, in accordance with all procedural requirements.

See, La. C. Cr. P. art. 924, et seq.; State v. McGee, p. 3 (La. 2/25/19), 264
13

So. 3d 445, 447; State v. Morrison, 45,620, p. 21 (La. App. 2 Cir. 11/24/10),

55 So. 3d 856, 869.

CONCLUSION

For the above-stated reasons, defendant’s conviction and sentence are

AFFIRMED.

14