State of Louisiana v. Richard Lee Gilbert

Judgment rendered September 27, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,257-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

RICHARD LEE GILBERT Appellant

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 21CR04974

Honorable Bernard Scott Leehy, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Holli Ann Herrle-Castillo

ROBERT STEPHEN TEW Counsel for Appellee
District Attorney

KALEE MORGAN MOORE
Assistant District Attorney

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Before COX, ROBINSON, and MARCOTTE, JJ.

MARCOTTE, J.

This criminal appeal arises from the Fourth Judicial District Court,

Parish of Ouachita, the Honorable Scott Leehy presiding. Defendant,

Richard Lee Gilbert (“Gilbert”), was convicted of second-degree murder

under La. R.S. 14:30.1. Gilbert was sentenced to life imprisonment, to be

served without the benefit of probation, parole, or suspension of sentence.

Gilbert now appeals, arguing that there was insufficient evidence to support

his conviction and that the trial court erred by not granting his motion to

appoint a sanity commission. For the following reasons, we affirm his

conviction and sentence.

FACTS

On September 21, 2021, Gilbert shot Clara Hardwell three times after

being told that Ms. Hardwell struck his mother, Shirley Gilbert (“Shirley”),

in the head. The altercation between Ms. Hardwell and Shirley was over

five dollars that Ms. Hardwell claimed Shirley owed her. Following the

shooting, Ms. Hardwell was rushed to the hospital but was pronounced dead

upon arrival. Gilbert fled the scene of the crime and hid in an abandoned

house, but was eventually arrested by police for the shooting death of Ms.

Hardwell.

On December 16, 2021, Gilbert was charged by bill of indictment

with the second-degree murder of Ms. Hardwell, in violation of La. R.S.

14:30.1. Gilbert pled not guilty and sought the appointment of a sanity

commission.

At the hearing on the motion to appoint a sanity commission, Gilbert’s

counsel called Sam Dickens, an investigator with the Indigent Defender

Board, to testify. Mr. Dickens testified that he interviewed Gilbert on June

4, 2022, and during the interview, Gilbert could answer his questions but

often rambled. Mr. Dickens said that as he talked to Gilbert, “the word

schizophrenia came up.” Mr. Dickens stated that when he pressed Gilbert

for more information about his claimed schizophrenia, Gilbert could not tell

him how long it had been since he had been diagnosed or even who

diagnosed him.

Mr. Dickens said that Gilbert understood he was facing murder

charges and a possible life sentence without parole. Mr. Dickens also said

that he did not know if an actual doctor had diagnosed Gilbert, or if the

condition was just self-reported to health care providers.

The state argued that the defense did not show that Gilbert’s alleged

schizophrenia caused him to be unable to proceed or mentally incompetent

to understand the nature of the charge against him and appreciate its

seriousness. The state pointed out that Mr. Dickens’ testimony established

that on June 4, 2022, Gilbert understood what the penalty and charges

against him were. It was the state’s position that Gilbert knew the charges

against him and had a “complete understanding of the defense that he’s

asserting.” In support of this argument, the state introduced into evidence

recordings played for the trial court of phone calls made by Gilbert from the

Ouachita Correctional Center (“OCC”) to witnesses between September of

2021, and May 23, 2022, in order to show Gilbert’s continued awareness of

what happened as well as his competency to stand trial.

On June 13, 2022, the trial court denied Gilbert’s motion to appoint a

sanity commission, noting that it was “convinced that the defense has not

met its burden by a preponderance of the evidence that Gilbert was

incapable of assisting counsel.” The trial court found that the phone calls
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made by Gilbert from the OCC evidenced his understanding of available

defenses and the severity of the charges against him. The trial court further

observed that a close review of the medical records showed that the word

“schizophrenia” appeared as the result of Gilbert’s self-reporting of his

alleged condition.

Gilbert sought emergency writs, which were not considered by this

court due to being untimely filed. Gilbert sought writs again on June 21,

2022, which this court denied.

Following the empaneling of a 12-member jury, a trial was held July

18-19, 2021, where the following evidence was adduced. Detective Chad

Grubbs (“Det. Grubbs”) is a detective with the West Monroe Police

Department. On September 23, 2021, Det. Grubbs responded to a call that

there had been a homicide on the porch of a duplex apartment at 108

Linderman Avenue in West Monroe, Louisiana. Upon arrival, Det. Grubbs

ascertained that the porch where the homicide occurred was directly in front

of an apartment occupied by Shirley, and that the adjacent apartment was

occupied by Shirley’s sister, Sheila Gilbert (“Sheila”).

Det. Grubbs was shown a series of photographs of the apartments’

exterior and porches, and confirmed that they showed what he saw when he

arrived at the scene. After inspecting the area where the shooting occurred,

Det. Grubbs took statements from Shirley, Sheila, Jesse Jones, and Linda

Preston, all of whom he found to be believable. Det. Grubbs said that in his

interview with Shirley, she never mentioned anything about her son acting in

protection of her when he shot Ms. Hardwell. The recorded statements that

Det. Grubbs took from Shirley and Sheila were admitted into evidence and

played for the jury.
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Jesse Jones lived near Shirley and witnessed the immediate aftermath

of Ms. Hardwell’s murder. He testified that he was riding his bicycle near

108 Linderman Avenue when he heard gunshots. Curious as to what had

occurred, Mr. Jones approached the house from where he heard the gunshots

and saw Ms. Hardwell lying on the ground near the front porch of the house.

Mr. Jones said he saw Gilbert get into the passenger seat of a green truck

parked in the driveway, and then speed away. Mr. Jones testified that when

he turned Ms. Hardwell over to attempt to render aid to her, he did not see a

gun or any weapons on her. Mr. Jones recognized Gilbert because Gilbert

had lived with him for a brief period when Gilbert had “no place to go.” Mr.

Jones identified Gilbert in the courtroom as the same man he saw leaving the

scene of the crime that day.

Shirley testified that on September 23, 2021, Ms. Hardwell, whom she

referred to as “Bre,” entered her duplex apartment at 108 Linderman Avenue

and engaged in an altercation over five dollars she claimed Shirley owed her.

Shirley said that when she did not produce the money, Ms. Hardwell struck

her in the head. Shirley said she then called her sister, Sheila, who lived in

the other half of the duplex, for help, and the sisters forced Ms. Hardwell

from the house.

When Gilbert arrived, Shirley said she was at her doorway and Ms.

Hardwell was outside. Shirley said she then told her son that Ms. Hardwell

had hit her. Shirley stated that she and her other sister, Linda Preston, were

on a three-way call with 911, relaying information about how Ms. Hardwell

had struck her when Gilbert pulled out a gun and shot Ms. Hardwell three

times. The audio recording of the chaotic 911 call was admitted into

evidence and played for the jury.
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Sheila lives next door to Shirley in the adjoining duplex apartment.

She testified that she was at her sister’s apartment when Ms. Hardwell

arrived and that Shirley and Ms. Hardwell began arguing over five dollars.

Sheila said that Ms. Hardwell was asked to leave Shirley’s apartment

because she was “knocking stuff over.” Gilbert then arrived. Sheila said

that Shirley conveyed to Gilbert that Ms. Hardwell had struck her “upside

the head.” After Sheila returned to her apartment, she said she heard

gunshots outside her door, and when she looked out her window, she saw

Gilbert with a gun and Ms. Hardwell on the ground.

Linda Preston is Gilbert’s aunt and was on the 911 call with Shirley

when Ms. Hardwell was shot. Ms. Preston testified that on September 23,

2021, she got a call from her sister, Shirley, informing her that Ms. Hardwell

had hit Shirley and “tore up her house.” Ms. Preston suggested that the two

of them call 911 to deal with the situation. Ms. Preston said she initially

called 911 before patching in Shirley for a three-way call. Ms. Preston said

that she and Shirley were on the 911 call with police when the shooting

occurred.

Dr. Frank Peretti is a forensic pathologist who performed an autopsy

on Ms. Hardwell. The parties stipulated that he is an expert in his field. Dr.

Peretti testified that Ms. Hardwell was 33 years old, 5'8", and 358 lbs. at the

time of her death. He concluded that her cause of death was homicide from

three gunshot wounds, one of which led to massive internal bleeding. Dr.

Peretti was shown numerous photographs of Ms. Hardwell, all of which he

confirmed were the same ones he took in connection with his autopsy. The

photographs were admitted into evidence. The state rested. Gilbert

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exercised his right to remain silent and elected not to testify in his own

defense. The defense rested.

Following deliberation, the jury found Gilbert guilty as charged. The

jury was polled and the verdict was unanimous. On September 15, 2022, the

trial court sentenced Gilbert to life in prison without benefits. Notably, the

trial court did not use the term “hard labor” when sentencing Gilbert. On

September 23, 2022, a motion for appeal was filed, and on September 27,

2022, it was granted. This direct appeal followed.

DISCUSSION

Sufficiency of the Evidence

Gilbert asserts that the evidence was insufficient to convict him of

second-degree murder. Appellant does not dispute that he shot Ms.

Hardwell. However, he argues the evidence established that he committed

the offense in sudden passion or heat of blood, warranting the responsive

verdict of manslaughter.

Gilbert argues that the evidence established that Ms. Hardwell struck

Shirley and ransacked her belongings just before he arrived at his mother’s

home. Gilbert claims that he only shot Ms. Hardwell after he was told that

she struck his mother, and that after being told what had occurred, not

enough time had passed to allow his blood to cool.

Gilbert notes that Ms. Hardwell was a large woman, 5'8" and 358

pounds, compared to Shirley’s height of under 5' and weight of

approximately 100 pounds. Gilbert further notes that his mother had

obvious mental and/or emotional problems as evidenced by her inability to

call 911 and speak to the operator on her own, needing her sister to make the

three-way call, and the difficulty she had with recounting the events when
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she testified. Gilbert asserts that these factors combined were sufficient to

enrage him and deprive him of his self-control and cool reflection such that

he should have been convicted of manslaughter rather than second-degree

murder. Gilbert requests that this court vacate his conviction and sentence.

The state argues that the evidence was more than sufficient to convict

Gilbert of second-degree murder. The state asserts that if Gilbert is allowed

reduced culpability in a homicide based on the fact that he was told the

victim hit his mother prior to his arrival, “it would make a mockery of the

cases in which the manslaughter statute should be applied.”

The state argues that even assuming Gilbert is accurate in saying that

the killing resulted from being told Ms. Hardwell struck his mother prior to

his arrival, that is still not sufficient grounds for a finding of manslaughter.

The state asserts that there was no act of violence or assault committed in

Gilbert’s presence and that his decision to shoot and kill Ms. Hardwell was

based on words. The state argues that those are not circumstances sufficient

to deprive an average person of self-control or cool reflection. The state

further argues that Gilbert’s intent to kill can be inferred from the fact that

he shot Ms. Hardwell three times.

When issues are raised on appeal contesting the sufficiency of the

evidence and alleging one or more trial errors, the reviewing court should

first determine the sufficiency of the evidence. State v. Hearold, 603 So. 2d

731 (La. 1992). The Louisiana Supreme Court has set forth the following

standard of review of the sufficiency of the evidence:

When reviewing the sufficiency of the evidence to support a
conviction, Louisiana appellate courts are controlled by the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.
Ct. 2781, 61 L. Ed. 2d. 560 (1979). Under this standard, the
appellate court “must determine that the evidence, viewed in the
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light most favorable to the prosecution, was sufficient to
convince a rational trier of fact that all of the elements of the
crime had been proved beyond a reasonable doubt.” State v.
Neal, 00-0674, (La. 6/29/01) 796 So. 2d 649, 657 (citing State
v. Captville, 448 So. 2d 676, 678 (La. 1984)).

State v. Brown, 03-0897, p. 22 (La. 4/12/05), 907 So. 2d 1, 18, cert. denied,

547 U.S. 1022, 126 S. Ct. 1569, L. Ed. 2d 305 (2006).

Relevant to this case, second-degree murder is “the killing of a human

being ... [w]hen the offender has a specific intent to kill or to inflict great

bodily harm.” La. R.S. 14:30.1(A)(1). Specific intent is that state of mind

which exists when the circumstances indicate that the offender actively

desired the prescribed criminal consequences to follow his act or failure to

act. La. R.S. 14:10(1). Specific intent may be inferred from the

circumstances surrounding the offense and the conduct of the defendant.

State v. Bishop, 01-2548 (La. 1/14/03), 835 So. 2d 434. Specific intent to

kill may also be inferred from the extent and severity of the victim’s injuries.

State v. Bull, 53,470 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1175, writ denied,

20-00797 (La. 12/22/20), 307 So. 3d 1040.

La. R.S. 14:31(A)(1) states that manslaughter is:

A homicide which would be murder under ... Article 30.1
(second-degree murder), but the offense is committed in sudden
passion or heat of blood immediately caused by provocation
sufficient to deprive an average person of his self-control and
cool reflection. Provocation shall not reduce a homicide to
manslaughter if the jury finds that the offender's blood had
actually cooled, or that an average person's blood would have
cooled, at the time the offense was committed[.]

A defendant who claims provocation as a means of reducing murder

to manslaughter bears the burden of proving these elements by a

preponderance of the evidence. State v. McGee, 51,977 (La. App. 2 Cir.

4/3/19), 316 So. 3d 1196, writ denied, 19-00761 (La. 11/19/19), 282 So. 3d

8

1066. Provocation and the time for cooling are questions for the jury to

determine according to the standard of the average or ordinary person. Id.,

citing State v. Leger, 05-0011 (La. 7/10/06), 936 So. 2d 108, cert. denied,

549 U.S. 1221, 127 S. Ct. 1279, 167 L. Ed. 2d. 100 (2007).

“Sudden passion” and “heat of blood” which distinguish manslaughter

from homicide are not elements of the offense, but mitigatory factors

exhibiting a degree of culpability less than is present when the homicide is

committed without them. State v. Tompkins, 403 So. 2d 644 (La. 1981);

State v. Arnold, 30,282 (La. App. 2 Cir. 1/21/98), 706 So. 2d 578; State v.

Armstrong, 32,279 (La. App. 2 Cir. 9/22/99), 743 So. 2d 284, writ denied,

99-3151 (La. 4/7/00), 759 So. 2d 92. A defendant who shows by a

preponderance of the evidence that these mitigatory factors are present is

entitled to the verdict of manslaughter. State v. Lombard, 486 So. 2d 106

(La. 1986). However, the defendant is not obligated to establish the factors

affirmatively; instead, the jury may infer them from the overall evidence

presented. State v. Jackson, 34,076 (La. App. 2 Cir. 12/6/00), 774 So. 2d

1046. The reviewing court’s function is to determine whether a rational trier

of fact, viewing the evidence in the light most favorable to the state, could

have found that the mitigatory factors were not established by a

preponderance of the evidence. State v. Lombard, supra.

Provocative acts held to rise to the level of mitigating conduct involve

physical threats or actions on the part of the victim. State v. Heard, 22-378

(La. App. 3 Cir. 11/23/22), 353 So. 3d 326, writ denied, 22-01829 (La.

4/18/23), 359 So. 3d 508. Mere words or gestures, however offensive or

insulting, will not reduce homicide from murder to manslaughter. State v.

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Mitchell, 39,202 (La. App. 2 Cir. 12/15/04), 889 So. 2d 1257, writ denied,

05-0132 (La. 4/29/05), 901 So. 2d 1063.

Viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found beyond a reasonable doubt that the

state proved the essential elements of second-degree murder. The state

presented sufficient evidence to prove that Gilbert killed Ms. Hardwell when

he had a specific intent to kill or to inflict great bodily harm. Gilbert shot

Ms. Hardwell three times before fleeing the scene of the crime.

Furthermore, any rational trier of fact could have found that the

mitigatory factors of “sudden passion” and “heat of blood” were not

established by a preponderance of the evidence. Gilbert’s claim that words

were not what caused him to kill Ms. Hardwell is belied by the fact that

Gilbert was told, using words, that Ms. Hardwell hit his mother prior to his

arrival. Gilbert did not see anyone strike his mother, because he was not

present when the alleged strike occurred. Instead, Gilbert was informed that

his mother was struck before he arrived. No act of violence or assault was

committed in Gilbert’s presence. His decision to shoot and kill Ms.

Hardwell was, in fact, based on words.

This court is not convinced that these were circumstances sufficient to

deprive an ordinary person of their self-control or cool reflection such that

Gilbert should have been convicted of manslaughter rather than second-

degree murder. Accordingly, Gilbert’s first assignment of error is without

merit.

Sanity Commission

In Gilbert’s second assignment of error, he argues that the trial court

erred in denying his request for a sanity commission. Gilbert claims that the
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trial court confused the standard for adjudicating competency with the

standard for ordering the competency hearing. To receive a competency

hearing, Gilbert argues that he needed only to present evidence to cause the

judge to have reasonable doubt about his competency. Gilbert alleges that

since he was able to show prison and hospital medical records revealing

schizophrenia, the trial court should have been alerted to the possibility that

he was incompetent and ordered a competency hearing.

Gilbert argues that psychiatric professionals are in the best position to

evaluate his competency. Gilbert asserts that this is particularly true in light

of his own mental history, the fact that he was not on his medication, and as

his trial lawyer noted, displayed delusional aspects in some of his

conversations. Gilbert further noted that his trial lawyer requested a

competency hearing because Gilbert seemed unable to assist him with the

case. For those reasons, Gilbert argues that the trial court abused its

discretion in failing to grant the competency hearing.

The state argues that the trial court correctly denied his motion and

that there are no grounds to disturb the trial court’s exercise of discretion.

The state points out that at the hearing on Gilbert’s motion to appoint a

sanity commission, Gilbert’s own witness, Mr. Dickens, testified about how

Gilbert clearly understood the charges against him and the penalty if found

guilty.

The state also notes that the only evidence offered to support the claim

that Gilbert suffered from schizophrenia was unsubstantiated statements

made by Gilbert himself. The state asserts that no evidence was offered to

show that there had ever been a diagnosis made by a doctor, nor was any

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evidence offered to indicate that schizophrenia had negatively impacted

Gilbert’s cognitive abilities at any point in his past.

Finally, the state points to the evidence it produced at the hearing on

the motion to appoint a sanity commission: several recordings taken from

the OCC of phone calls made by Gilbert. The state argues that from these

recordings, the trial court was able to clearly determine that Gilbert had the

capacity to proceed with his trial and assist his counsel in his own defense.

The Fourteenth Amendment’s Due Process Clause protects an

individual’s right not to proceed to trial while legally incompetent. See

Medina v. California, 505 U.S. 437, 112 S. Ct. 2572, 120 L. Ed. 2d 353

(1992). Pursuant to La. C. Cr. P. art. 643, a court shall order a mental

examination of a defendant and appoint a sanity commission when it “has

reasonable ground to doubt the defendant’s mental capacity to proceed.”

“Reasonable ground” refers “to information which, objectively considered,

should reasonably raise a doubt about the defendant’s competency and alert

the court to the possibility that the defendant can neither understand the

proceedings, appreciate the proceedings’ significance, nor rationally aid his

attorney in his defense.” State v. Anderson, 06-2987 (La. 9/9/08), 996 So.

2d 973, 992, cert. denied, 556 U.S. 1165, 129 S. Ct. 1906, 173 L. Ed. 2d

1057 (2009).

The trial court’s decision regarding a defendant’s competency to stand

trial should not turn solely upon whether he suffers from a mental disease or

defect, but must be made with specific reference to the nature of the charge,

the complexity of the case, and the gravity of the decision with which the

defendant is faced. A judicial examination of a defendant’s competency

focuses primarily on whether a defendant understands the nature of the
12

charge and can appreciate its seriousness. State v. Odenbaugh, 10-0268 (La.

12/6/11), 82 So. 3d 215, cert. denied, 568 U.S. 829, 133 S. Ct. 410, 184 L.

Ed. 2d 51 (2012).

In the exercise of its discretion, the trial court may consider both lay

and expert testimony when deciding whether reasonable grounds exist for

evaluating a defendant’s competency. Id. at p. 8, 228. An appellate court

owes the trial court’s determinations as to the defendant’s competency great

weight, and the trial court’s ruling thereon will not be disturbed on appeal

absent a clear abuse of discretion. Id. The appointment of a sanity

commission is not a perfunctory matter or a ministerial duty of the trial

court, and is not guaranteed to every accused in every case. Id. Even the

fact that a defendant’s capacity to proceed is called into question by formal

motion does not, for that reason alone, require an order for a mental

examination. Id. “The ordering of a mental examination as to the

defendant’s present capacity to proceed rests in the sound discretion of the

court. It is not enough that the defense has filed a motion urging the

defense, but there must be sufficient evidence to raise a reasonable doubt as

to such capacity.” Id.; La. C. Cr. P. art. 643, Off. Rev. Cmt. (a).

The proper considerations to determine whether a criminal defendant

is fully aware of the nature of the proceedings against him include whether

he: (1) understands the nature of the charge and can appreciate its

seriousness; (2) understands what defenses are available; (3) can distinguish

a guilty plea from a not guilty plea and understand the consequences of each;

(4) has an awareness of his legal rights; and (5) understands the range of

possible verdicts and the consequences of conviction. State v. Bryant,

52,743 (La. App. 2 Cir. 6/26/19), 277 So. 3d 874, writ denied, 19-01320 (La.
13

10/8/19), 280 So. 3d 171. All of these factors were considered by the trial

court before it declined to appoint a sanity commission. The trial court even

went into detail as to each factor and explained its reasoning for the decision

on each of them.

The trial court noted that Gilbert’s claim of schizophrenia was not

supported by any actual diagnosis in the medical records. The trial court

also based its decision on the recordings of multiple phone calls made by

Gilbert to witnesses wherein Gilbert threatened action against them if they

did not testify according to his wishes. The trial court found that Gilbert’s

behavior in this regard evidenced his ability to understand the nature of the

charge against him and appreciate its seriousness. We find no abuse of

discretion in the trial court’s denial of the motion to appoint a sanity

commission.

Errors Patent

In accordance with La. C. Cr. P. art. 920, all appeals are reviewed for

errors patent on the face of the record. La. C. Cr. P. art. 879 requires a court

to impose a determinate sentence. If the applicable sentencing statute allows

discretion, the failure to indicate whether the sentence is to be served at

“hard labor” is an impermissible indeterminate sentence. State v. Norman,

05-794 (La. App. 5 Cir. 3/14/06), 926 So. 2d 657, writ denied, 06-1366 (La.

1/12/07), 948 So. 2d 145.

Gilbert was sentenced pursuant to the second-degree murder statute,

La. R.S. 14:30.1, which mandates the sentence be at hard labor.

Because the statute mandates hard labor and there is no discretion

allowed, the trial judge’s failure to state that this sentence was to be at hard

labor is harmless error and no corrective action is required.
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CONCLUSION

For the foregoing reasons, the conviction and sentence of defendant,

Richard L. Gilbert, are affirmed. In order to clarify the sentence, we rule

that it is to be served at hard labor.

AFFIRMED.

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