State of Louisiana v. Chet K. Whatley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 03-655

STATE OF LOUISIANA

VERSUS

CHET K. WHATLEY

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 69,010
HONORABLE JOHN PHILIP MAUFFRAY JR., DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billie Colombaro Woodard, Michael G. Sullivan, and Billy
Howard Ezell, Judges.

Woodard, J., concurs.

REVERSED AND REMANDED WITH INSTRUCTIONS.

David E. Stone
Attorney At Law
P. O. Box 165
Alexandria, LA 71309
(318) 445-4601
Counsel for: Defendant/Appellant
Chet K. Whatley

J. Reed Walters

District Attorney - 28th Judicial District Court
P. O. Box 1940
Jena, LA 71342
(318) 992-8282
Counsel for: Plaintiff/Appellee
State of Louisiana

Steven P. Kendrick
Attorney at Law
P. O. Box 1889
Jena, LA 71342
(318) 992-4107
Counsel for: Plaintiff/Appellee
State of Louisiana

Chet K. Whatley
Pro Se
9511 Hwy 127 South
Jena, LA 71342

EZELL, Judge.

On June 3, 2002, the LaSalle Parish District Attorney’s Office filed a bill of

information charging Defendant, Chet Whatley, with simple criminal damage to

property, violation of La.R.S. 14:56. At the close of a trial held on October 30, 2002,

a six-person jury found him guilty as charged. Defendant represented himself at trial.

Subsequently, Defendant filed a motion for acquittal, which the trial court

denied on March 4, 2003. On April 9, the court sentenced him to pay a $1,000 fine

and serve one year at hard labor. On these latter dates, Defendant was represented by

counsel. Said counsel now represents him on appeal.

Defendant now appeals his conviction and sentence, assigning five errors.

FACTS

In April 2002, Defendant and his estranged wife, Natalie Whatley, were in the

midst of divorce proceedings. Pursuant to those proceedings, that court had issued an

interim order in October 2001, awarding use of a 1996 Cadillac El Dorado to Mrs.

Whatley.

On April 13, 2002, Defendant went to Mrs. Whatley’s residence and asked to

use the Cadillac the next day. She refused to let him use it, so he called the sheriff’s

office. Once deputies arrived, they assessed the situation, then advised Defendant to

leave. Defendant complied, but returned in the early morning hours of April 14, and

again asked to use the Cadillac. Again, she refused.

Defendant then threatened to ram the pickup truck he was driving into the

Cadillac. Shortly thereafter, Defendant’s daughter saw the pickup ram into the

Cadillac. She saw Defendant get out of the truck and leave the scene.

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ASSIGNMENTS OF ERROR NUMBERS ONE & THREE

In his first and third assignments of error, Defendant argues the evidence

adduced at trial was insufficient to support his conviction. Such an argument must be

addressed first, as a finding that the evidence was insufficient would result in an

outright acquittal. State v. Hearold, 603 So.2d 731, (La.1992). The analysis for such

claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical
inquiry of the reviewing court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d
126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983);
State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d
1212 (La.1981). It is the role of the fact finder to weigh the respective
credibility of the witnesses, and therefore, the appellate court should not
second guess the credibility determinations of the triers of fact beyond
the sufficiency evaluations under the Jackson standard of review. See
State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425
So.2d 1228 (La.1983)). In order for this Court to affirm a conviction,
however, the record must reflect that the state has satisfied its burden of
proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Regarding the present case, La.R.S. 14:56 states, in pertinent part:

Simple criminal damage to property is the intentional damaging of any
property of another, without the consent of the owner, and except as
provided in R.S. 14:55, by any means other than fire or explosion.

The thrust of Defendant’s argument is that at the time of the offense, he was

co-owner of the Cadillac, with rights coextensive to those of Mrs. Whatley. Thus, he

contends the State failed to prove the car belonged to “another,” or that “the owner”

did not consent to the damage.

The only evidence regarding ownership came in during the testimony of Mrs.

Whatley. The court notes the relevant colloquy:

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Q The judgment that you are referring to - the judgment that allows
you to use the vehicle - you had it between you and Chet. You had use,
possession and control of the car?

A Right. And I told him, I believe the 20th, we came to Court here.

MR. KENDRICK: Your Honor, may I approach?

THE COURT: Yes.

MR. KENDRICK: Thank you.

THE COURT: Please demonstrate the exhibit to Mr.
Whatley. And for the record, if it’s already marked, with
an identifying thing, please identify it for the record.

MR. KENDRICK: Certainly. It is pre-marked as
State’s Exhibit 1.

THE COURT: Okay. You can go off the record.

OFF RECORD

ON RECORD

THE COURT: Now we’re on.

MR. KENDRICK: May I approach the witness,
Judge?

THE COURT: Yes.

MR. KENDRICK: Ma’am, I have a document which
has been pre-marked as State’s Exhibit 1. And I would ask
that you identify that for me, please.

A The judgment that I received whenever we come to Court. And
it was on the 18th of October that was where they had give me use of the
car and the house.

Q And this is a signed judgment?

A Um-hmm.

Q And this is the judgment to which you were referring to in the
testimony?

A Yes, sir.

MR. KENDRICK: All right, Your Honor, the State
wishes to offer State’s Exhibit 1.

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THE COURT: Any objections, Mr. Whatley?

MR. WHATLEY: I don’t guess.

THE COURT: Okay. Then, let it be filed. Please
tender it to the Clerk.

MR. KENDRICK: Yes, sir.

....

MR. KENDRICK: The property which is the subject
of that order is the house, the business and the car. Isn’t
that correct?

A Yes, sir.

Q And that was all community property between you and Mr. Chet
Whatley?

A Yes, sir. It still is.

Q And that was all property which Judge Mauffray granted you
exclusive use and control at a trial in October of 2001?

A Yes, sir.

Q After you showed the judgement, which is State’s Exhibit 1 to the
law enforcement, the deputies, what happened next?

A Well, I didn’t actually show them the judgment. I told them that
I had a judgment that I could show them. And they said that that was no
problem. That they would tell Chet to leave. And they went out there
to the truck, where he was at, and they told him to leave and he got upset
and drove off. And the brown - the tan and blue truck that belonged to
Dr. Hedrick.

This court in a civil case, with a similar scenario observed:

The state simply did not prove beyond a reasonable doubt Pam
Rabalais took property “belonging to another.” Even assuming the
evidence sufficiently established Pam removed the truck from Steve
Rabalais’ yard, the State nonetheless was required to prove the “thing of
value” she took belonged to another.

The well-settled law of this State is that the rights of co-owners to
the possession of property held in common are equal and co-extensive.
Butler v. Hensley, 332 So.2d 315 (La.App. 4 Cir.1976). The Louisiana
Supreme Court long ago recognized:

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Co-owners are owners par mi et par tout, of part and of the
whole. Neither of two co-owners has the exclusive right to
any determinate part of the common property.

Thus the Court stated in Juneau v. Laborde, 82 So.2d 693, 696, 228 La.
410, 418 (1955), that the “right of co-owners to possession of the
property being equal and coextensive, neither becomes indebted to the
other for his personal occupancy and enjoyment, save, probably, that a
co-owner, who has been deprived of the right of possession by reason of
his co-owner’s exclusive occupancy, may claim damages from the date
upon which he has demanded occupancy and has been refused by the
possessor.” But even then, a co-owner who is dissatisfied with the use
to which the property is being put has his remedy by injunction if the
character is being changed or the assets wasted and to the remedy of
a partition if he is dissatisfied with the occupancy or possession
exercised by his co-owner. See Coon v. Miller, 175 So.2d 385 (La.App.
2 Cir.1965). The law generally does not afford a criminal remedy for the
taking of property held in common by one co-owner from another. Any
contention that property so held in common “belonged to another” is
insufficiently grounded vis a vis co-owners because each has the legal
right to take and possess the object of the alleged theft.

In this case, Pam Rabalais testified she acquired an ownership
interest in the object of the theft (the Chevy S-10 pickup) by virtue of an
Act of Donation executed by her husband, Jason Rabalais, who was
financially indebted to her for sums she loaned him prior to their
marriage. . . .

The Act of Donation, albeit invalid to translate title to immovable
property, evidenced Jason’s intent to convey to his wife an interest in the
truck to be held in “community.” Further, the State offered no evidence
to rebut Pam’s testimony that she loaned Jason $18,500 and in payment
of the loan he gave her equal interest in all the property listed separately
in his name, including the Chevy S-10 pickup. Without instructions on
what constitutes a valid “donation by manual gift,” the jury
understandably was ill-prepared to properly weigh the evidence. The
burden to prove beyond a reasonable doubt the property belonged to
“another” and not in any portion to Pam rests with the State. This
burden it did not carry as a matter of law.

State v. Rabalais, 99-623, pp. 7-9 (La.App. 3 Cir. 1/26/00), 759 So.2d 836, 840-41.
(emphasis added).

Although Rabalais was a theft case, we find its reasoning easily fits the present

context, i.e., criminal damage, as well. In both cases, the defendants and alleged

victims were co-owners of the property at issue, in situations connected to their

dissolving matrimonial regimes. Perhaps a more cogent point is that Rabalais clearly

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indicates that one co-owner cannot be criminally liable for taking property from

another co-owner. Thus, by analogy, such a co-owner cannot be criminally liable for

damaging co-owned property.

The lower court discussed this issue during the hearing on Defendant’s motion

for acquittal:

THE COURT: First of all, just let me say that - I mean that -
that case that was cited also did not persuade me. Your case that you
cited did not persuade me. Neither of those cases persuaded me one way
or the other. And so far everything that you’ve said so far is right except
your [sic] missing the essence of this. The essence of this is that the
property is not necessarily the thing itself but the right to use it. That’s
what the property is. That’s what the property right is. And if that
which Ms. Whatley had the right to use was damaged by the damage of
the thing - of the physical corporal [sic] thing itself, that’s the interest
that was invaded. And that’s the interest that is protected by the statute.
It’s not just physical corporeal, you know, property rights as far as my
analysis goes. Now, hey, it’s like Steppenwolf, I’ve been wrong before.
So, I don’t know if I’m right or if I’m wrong, but I truly believe that I am
right about this, that the essence of the offense was the invasion of the
property right, the property right not of ownership but of use. They are
two -

MR. STONE: And, Your Honor, -

THE COURT: - separate and distinct things and the statute
specifically says without the consent of the owner. But, it’s the owner
of the right, not necessarily the owner of the thing, although the thing
was damaged, it deprived the owner of the property right. And that was
the same analysis made in that First Circuit Case. The right to use the
property is separate and distinct from ownership and so, I -

....

THE COURT: Okay. Okay. Mr. Kendrick, I take it you don’t
have anything to say because you don’t need to say anything. Correct?

MR. KENDRICK: That’s correct, Judge. Only that we
agree - I guess the opposite of Mr. Stone. We agree with your
conclusion, maybe not the way that you get there. I think that he’s
probably guilty of it, regardless if there’s a use, possession, and control
order. And if you’ll consider this analogy -

THE COURT: I guess what I’m basing it on - let me tell you
specifically, it’s State versus Perry, 408 Southern Second 1358, and that
page is 1663. Okay? A case cited in the context of this particular
statute. Okay? Proceed.

6

MR. KENDRICK: Judge, I think that if we take the case out
of the domestic arena and put it in, perhaps succession arena, if a man
has nine brothers and sisters and inherited a piece of property and one
brother that he should’ve got it all, and said none of these other people
are gonna get their share, and burns down the property, I think that the
14:56 provides a remedy for that. I think it’s criminal.

THE COURT: No, except but by fire and explosion. That
wouldn’t work. You’d have to go to the arson statute. But, basically, the
elements are the same.

MR. STONE: Sure.

....

MR. STONE: Just briefly, Your Honor. On the Perry case,
I am well familiar with that case and I am aware that in that case the
defendant as arguing that owner should be defined in accordance with
using the terminology on - the last page, I guess.

THE COURT: Yes.

MR. STONE: [“]Contrary to the argument of the defendant,
owner should be defined in accordance with the common meaning and
understand the term not in accordance with the technical definition of
ownership of a movable property, meaning the term is be gathered from
the connection from which it is used and from the subject matter to
which it is applied.[”] And ownership - goes on later to say - [“]that is
not always defined as the person who holds the record title to
property.[”] Again, I have no problem with what that case says. But here
in this case, Perry must be limited to its facts. You had some people that
were charged with damaging property owned by someone else. Not the
defendant. At all. He had no ownership interest whatsoever. And in
Perry he was arguing that the tenants had no right to come in and say,
wait a minute, I didn’t give him permission to damage my property and
so the defense said, well the State failed to prove the essential element
of without the consent of the owner because the actual owner of that
lease hold property did not get into Court and say I did not give that
defendant permission to damage my property. We’ve got a completely
different situation. That case is totally in opposite, because we have an
owner. He’s sitting right next to me. He’s an owner, an owner, an
owner, an owner, until the community property is resolved, he sells his
interest, he gives away his interest, that interest is taken from him in
ownership to the corporals. [sic] And I think that the Court’s reliance on
Perry is exactly why we’re here, Your Honor. And I think exactly why
this case has no business in this Courtroom.

MR. KENDRICK: And, Judge, what - the we respond is this
- he didn’t - he took damage of the undivided interest of his ex-wife. He
didn’t have permission to damage that part of the interest. And not only
do we rely on Alessi, we rely on that argument as well.

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MR. STONE: Nothing further, Your Honor.

MR. KENDRICK: Nothing here, Judge.

THE COURT: Well, that’s - the Court also agrees with that
basically. You know, while there are civil remedies available, there’s
two civil remedies available that I’m aware of. It’s not only purely civil
remedy but there’s also the quasi criminal - or, quasi civil remedy of
contempt, a violation of the Court order. But, anyway, be all of that as
it could’ve been, because of how I view the statute in the context of this
particular case, the arguments made in the post-verdict judgment of
acquittal motion are denied.

MR. STONE: Please note my objection.

The case cited by the State both on appeal and below, State v. Alessi, 258 La.

753, 247 So.2d 858 (1971), held that tenants who damaged their landlord’s property

were criminally liable for such actions. The court noted that the existence of potential

civil remedies did not prevent the State from pursuing such a prosecution. Id. at 859.

A reading of the State’s brief, and the memorandum the State filed below,

suggests the State relied upon Alessi due to a misreading of Rabalais. In the motion

for acquittal, Defendant cited Rabalais and quoted dicta from the concurrence, which

commented that the matter belonged in civil court. Seizing upon this passage, the

State cited Alessi for its language on the relationship between the availability of civil

remedies, and criminal liability. However, we find the State was essentially arguing

against dicta, as the comment made by the concurring judge in Rabalais was not the

basis of the majority’s holding or the concurrence.

The lower court’s discussion of jurisprudence, cited above, also appeared to

focus upon the same Rabalais dicta. In denying the motion for acquittal, the lower

court explicitly relied upon State v. Perry, 408 So.2d 1358, 1363-64 (La.1982), which

contained the following discussion:

The trial court in its general charge to the jury gave the following
instruction which the defendants complain of on appeal:

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“Without the consent of the owner, in the context of
this statute, means without permission or approval of the
one who has the right of residency, use or occupancy.”

Defendants contend that this instruction was erroneous and that “owner”
should be defined more restrictively. Specifically, it is the contention of
the defendants that the term “owner” means the person who has the right
of direct, immediate, and exclusive authority over a thing; the “owner”
is that person who may use, enjoy, and dispose of a thing under the
conditions established by law. See LSA-C.C. Art. 477.

During the state’s case in chief the residents of each of the three
homes that were vandalized testified that they did not consent to the
damaging of their property. The defendants established that none of the
residents who testified had record title to the houses which had been
vandalized. Rather, the victims of these acts of vandalism were tenants
or lessees merely possessing the property that was vandalized.

It is axiomatic that the state must prove every element of the
crime with which the defendant in a criminal case is charged. An
essential element of the crime of simple criminal damage to property is
that the damage was done without the consent of the owner. Contrary to
the argument of the defendants, “owner” should be defined in accordance
with the common meaning and understanding of the term, not in
accordance with the technical definition of ownership of immovable
property. The meaning of the term is to be gathered from the connection
in which it is used and from the subject matter to which it is applied. See
LSA-R.S. 14:3. The term “owner” has been defined in many ways. See
Black's Law Dictionary (4th Edition). “Owner” may be defined as the
person in possession of a thing or the one with dominion, control and
management of a thing at the time in question. “Owner” is not always
defined as the person who holds the record title to property.

In this case, proof that damage to a house was inflicted without the
consent of the person living in the house is sufficient to establish lack of
consent of the owner. Additionally, we note that lack of consent of an
owner to malicious vandalism of an owner’s property can often be
inferred circumstantially from the evidence presented, and such is the
only reasonable inference under the evidence presented in this case.

Under the circumstances presented by this case, we think the trial
court’s definition of “owner” as including persons with the right of use,
residency or occupancy was not erroneous. The instruction to the jury
fairly dealt with the issue of proof of lack of consent. It is well
established that the ruling of a trial court on an objection to a portion of
his charge to a jury will not be disturbed unless the disputed portion,
when considered in connection with the remainder of the charge, is
shown to be erroneous and prejudicial. State v. Dardar, 353 So.2d 713
(La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Walker, 204 La. 523, 15 So.2d 874 (1943); State v. Davis, 154 La. 295, 97 So.
449 (1923). Under the facts presented in this case, we do not find the

9

disputed portion of the charge to the jury to be erroneous or prejudicial.
This assignment of error lacks merit.

While Perry and Rabalais are not in direct conflict with one another, they do

establish two separate routes for resolving the present case. Perry did not rely on

the Civil Code, Rabalais did. If, as in Rabalais, a co-owner is not criminally liable

for the taking of co-owned property, then it seems such a co-owner would not be

liable for damage to co-owned property. One possible distinguishing point, noted

by the State and the lower court, is that the court had issued an interim order in

October 2001. The order awarded her use of the car at issue. The lower court

reasoned that by damaging the car, Defendant had damaged her right to use the car,

as established by the court order. Since Defendant and Mrs. Whatley were still co-

owners at the time of the offense, Rabalais would dictate an acquittal.

On the other hand, Perry held that, for purposes of La.R.S. 14:56, right of use

is equivalent to ownership. Also, it appeared to divorce criminal-law definitions

from those of civil law, at least in situations where the direct victims are lessees.

However, as Defendant points out, the present case and Rabalais differ from Perry

and Alessi, because in the latter pair of cases the defendants clearly had no

ownership interest in the damaged property. Thus, in those cases, the question to

be resolved was whether lessee victims had ownership interests for purposes of the

La.R.S. 14:56. Also, Perry could be seen as part of a separate genera of

jurisprudence that treats lessees or possessors as “owners” in a criminal-law context.

See, e.g., State v. McClanahan, 262 La. 138, 262 So.2d 499 (1972), and State v.

Lewis, 49 La.Ann. 1207, 22 So. 327 (1897).

However, other courts have addressed issues of civil-law ownership and use

in the criminal-law context. For example, in State v. Peterson, 623 So.2d 919

(La.App. 4 Cir. 1993), a defendant claimed he could not be guilty of simple burglary

10

of his grandmother’s house. He argued that his one-eighth ownership interest in the

house gave him authority to enter, thus, said entry was not “unauthorized” as defined

by the simple burglary statute.

The fourth circuit acknowledged the defendant’s one-eighth ownership

interest, but observed the victim had usufruct of the house. Relying on the Civil

Code, the court stated the defendant’s naked ownership interest did not entitle him

to interfere with the victim’s usufructuary rights. Id.

We find that Peterson highlights the factor that distinguishes the present case

from Rabalais. The court order awarding use of the car to the victim, and preventing

either party from alienating it, placed Defendant in a position analogous to that of

the Peterson defendant, who had naked co-ownership. Meanwhile, the victim here

was in the same position as the victim in Peterson, who had usufruct of the home at

issue in that case. Therefore, Defendant’s co-ownership rights, expressly limited by

the court’s prior order, did not entitle him to interfere with the victim’s use of the

car. Thus, we find the Defendant’s argument that his status as co-owner immunized

him from criminal liability for simple criminal damage lacks merit.

His argument implies that some other elements were also unproven, but we

note the victim testified she did not consent to Defendant’s act of damaging the car.

Also, Jessica LeAnne Whatley testified she saw her father, the Defendant, commit

the act of driving into the car at issue.

In his first assignment of error, Defendant also argues the State failed to prove

the damage exceeded $500.00. We find this argument is meritless, as the State

introduced an invoice showing the repairs cost $5,161.62. Also, although the record

lacks evidence of the condition of the car before the offense, Mrs. Whatley’s

testimony indicated the repairs were made for damage that resulted from

Defendant’s offense, as shown by the following colloquy:

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MR. KENDRICK: May I approach, Judge?

THE COURT: Yes.

MR. KENDRICK: Ma’am, I have a document
which I have pre-marked as State’s Exhibit 2 and I would
ask for you to identify that for me, please.

A Yeah. That’s the car. That’s the Cadillac El Dorado.

Q Okay.

A Also, it has some front damage up here, too.

Q Okay. But, this accurately reflects the damage on the car right
after the incident?

A It was in a probably in a hour - by the time we called the law, it
was about one o’clock. But, by the time they came out, and had to
come back to town to get the camera to come back and take a picture.
I mean, this come out of the police camera.

Q Okay. But, you actually observed what is being shown in these
pictures and you can tell this jury, you know, I didn’t personally take
the pictures but this does represent the condition of the car after -

A Right.

Q - it happened. Isn’t that correct?

A Right.

MR. KENDR1CK: Your Honor, I’d like to offer
State’s Exhibit 2 and also show the picture to the jury at
this time.

THE COURT: Any objection?

MR. WHATLEY: No, sir.

THE COURT: Okay. Let it be filed first.

MR. KENDRICK: Yes, sir.

THE COURT: But, since it is an Exhibit, tender it to
the Clerk, the Clerk will endorse it as filed. At any
appropriate time, any Exhibit that’s been introduced can
be demonstrated to the jury.

12

MR. KENDRICK: Thank you, Judge. Ma’am, the
gentleman who you’re testifying about, Chet Whatley, do
you see him in the court room today?

A Yes, sir. He’s at the other table.

Q Thank you. Mr. Whatley did not cause the damage by exploding
it or by burning it? Isn’t that correct?

A No. It did damage on the front, right-hand side of the tan truck.

MR. KENDRICK: Your Honor, may I approach?

THE COURT: Yes.

MR. KENDRICK: Ma’am, I have a document
which I have pre marked as State’s Exhibit 3, and I’d ask
that you identify that for me, please.

A This is the what Progressive was going to fix and pay the - they
sent me this part of the check to pay for my ‘55. And it shows the $250
deductible but I only had to pay $150. So, all together, this is what they
paid.

Q This document demonstrates what Progressive paid on your
claim?

A On my claim. Yes.

Q I also have a document which I have pre-marked as State’s
Exhibit 4 and I would like for you to identify that for me, please.

A This is where I sent the car to Antley’s Collision. And where I
gave them my check and my deductible check and the total balance due
to fix the car.

Q Okay. And if I - if you read these two exhibits in conjunction
with each other, State’s Exhibit 4 is the bill from the collision center.

A Right.

Q And the State’s Exhibit 3 is the insurance paperwork to pay the
claim.

A Right.

MR. KENDRICK: Your Honor, I would like to
offer State’s Exhibit 3 and State’s Exhibit 4 at this time.

THE COURT: Any objection?

13

MR. WHATLEY: No, sir, Your Honor.

THE COURT: Let them be filed.

Thus, we find the Defendant’s first and third assignments lack merit.

We will proceed to discuss the remaining assignments.

ASSIGNMENT OF ERROR NUMBER TWO & ERROR PATENT

In his second assignment, Defendant contends the trial court failed to make

an adequate determination regarding whether he validly waived his right to counsel.

In our review of the record for errors patent, we discovered an error which

occurred at arraignment. Because discussion of this error is related to the issue

raised in this assignment of error, we will discuss them together.

Louisiana Code of Criminal Procedure Article 513 states:

In the case of an offense punishable by imprisonment, when the
defendant appears for arraignment without counsel, the court shall
inform him before he pleads to the indictment of his right to have
counsel appointed to defend him if he is indigent. When a defendant
states under oath that he desires counsel but is indigent, and the court
finds the statement of indigency to be true, the court shall provide for
counsel in accordance with the provisions of R.S. 15:145 to the
defendant before he pleads to the indictment.

The Defendant in this case was not represented by counsel at arraignment and

the trial court did not comply with the requirements of Article 513. Recently, in a

case where a defendant was not afforded counsel at arraignment, this court examined

whether arraignment is a critical stage of the proceedings. In doing so, this court

stated:

In Louisiana, there is no confrontation of witnesses or
presentment of evidence at arraignment. Additionally, available
defenses are not lost if not pled at arraignment. For example, La.Code
Crim.P. art. 561 provides that a “defendant may withdraw a plea of ‘not
guilty’ and enter a plea of ‘not guilty and not guilty by reason of
insanity,’ within ten days after arraignment. Thereafter, the court
may, for good cause shown, allow such a change of plea at any time
before the commencement of the trial.” (Emphasis added). La.Code
Crim.P. art. 726 which permits a defendant, who intends to introduce

14

testimony relating to a mental disease, defect, or other condition
bearing upon the issue of his mental state required for the offense
charged, to notify the district attorney of such intention no later than
ten days prior to trial or such reasonable time as the court may permit.
Moreover, motions to quash are required to be filed after arraignment.
See La.Code Crim.P. arts. 521 and 535. Therefore, the present case is
distinguishable from Hamilton [v. Alabama, 368 U.S. 52, 82 S.Ct. 157
(1961).

Further, the present case is distinguishable from [State v.]
Fraychineaud [, 620 So.2d 338 (La.App. 5 Cir. 1993)]. Fraychineaud
was not represented by an attorney at arraignment or at trial and the
court found reversible error. The court did not distinguish whether it
would have reached the same result if the attorney had not been present
at arraignment but had been present at the trial. In this case, the
Defendant had appointed counsel at the time of arraignment. The
record indicates that on August 29, 2001, the trial court ordered no
bond be set and referred the case to the Indigent Defender Board. The
day after arraignment, November 6, 2001, the Defendant's appointed
counsel filed a Motion for Discovery and Inspection and Motion for
Bill of Particulars. On January 2, 2002, the Defendant's counsel
requested discovery and a fifteen day extension to file any motions.
Moreover, he also participated in all phases of the trial and sentencing.

Consequently, arraignment was not a critical stage requiring the
presence of counsel. Therefore, this assignment of error is denied.

State v. Tarver, 02-973, 02-974,02-975, pp. 9-10 (La.App. 3 Cir. 3/12/03), 846

So.2d 851, 857-58.

We find Tarver is distinguishable in that the Defendant in this case was not

afforded counsel at trial. More on point is State v. Fraychineaud, 620 So.2d 338

(La.App. 5 Cir. 1993). As mentioned in Tarver, Fraychineaud was not represented

by counsel at arraignment or trial. In addressing the defendant’s claim that he was

not informed of his right to counsel and did not waive that right, the fifth circuit

stated:

Since the defendant was faced with the possibility of
imprisonment he was constitutionally entitled to counsel. Argersinger
v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Accordingly, LSA-C.Cr.P. art. 513 mandates that the court inform a
defendant of his right to counsel before he pleads in answer to an
indictment for an offense punishable by imprisonment. While the
defendant may waive the right to counsel, the waiver must be knowing
and voluntary and the record must affirmatively reflect that the

15

defendant was advised of the right and elected to waive it. LSA-
C.Cr.P. art. 514; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,
45 L.Ed.2d 562 (1975). This failure of the trial court to inform
defendant of his right to counsel and to secure a valid waiver
constitutes reversible error.

Id. at 340 (footnote omitted).

Unlike the situation in Tarver, the Defendant in the present case was not

represented by counsel at either arraignment or trial, which, under the analysis

employed in Tarver, supports a finding that arraignment was a critical stage in this

case.

In the case sub judice, the right to counsel was discussed immediately before

jury selection:

THE COURT: Okay. Very good, then. Okay. Are we ready to
have the jury come back in?

MR. KENDRICK: No, sir, Judge. I think that under the Third
Circuit jurisprudence, I think that at this time it would be appropriate
if the Court would make a determination whether Mr. Whatley has
validly waived his right to counsel. I’ve taken into account the factors
in the State versus Hayes case and it will-

THE COURT: I see the gentleman present. I see that he’s ready.
I believe that’s a correct statement, then. You’re ready to proceed and
you’re gonna represent yourself. Right?

MR. WHATLEY: Yes, sir.

THE COURT: That’s what I thought. That’s giving the tenor of
his demeanor and what have you, I figured that he’s ready to represent
himself. That is correct?

MR. WHATLEY: Yes, sir.

THE COURT: Okay. Now, we’re ready to call the jury in?

MR. KENDRICK: Sir?

THE COURT: Are we ready to call the jury in? Are there any
other preliminary matters?

MR. KENDRICK: Yes, Your Honor. There - the requirements
of Hayes require a determination of literacy competency -

16

understanding (inaudible) - much like the warnings, Judge, that Your
honor -

THE COURT: Okay.

MR. KENDRICK: - makes in your colloquy.

THE COURT: Mr. Whatley, see this little short eight and a half
by 11 piece of paper?

MR. WHATLEY: This one right here, Your Honor?

THE COURT: Yes, sir.

MR. WHATLEY: Yes, sir.

THE COURT: What - the big writing at the top - what does that
say?

MR. WHATLEY: Juror questions dash criminal cases.

THE COURT: And then the next line? In smaller print?

MR. WHATLEY: Name, mailing address, marital status,
spouse’s name, occupation, spouse’s occupation.

THE COURT: I think Mr. Whatley is literate. I make a factual
determination that he reads the American language - That he reads the
English language on a piece of paper. And, of course, you understand,
basically, what the general juror questions is. [sic] You can tell me
what that means in your own language.

MR. WHATLEY: I’m sorry, Your Honor?

THE COURT: Your general juror questions - you know what
that means?

MR. WHATLEY: Yes, sir.

THE COURT: And it means to you?

MR. WHATLEY: That I can question the jurors?

THE COURT: Well, it means that. But, this is what I’m gonna
ask them. Is that correct?

MR. WHATLEY: Yes, sir.

THE COURT: Okay. Are you nervous, sir?

MR. WHATLEY: Yes, sir.

17

THE COURT: Well, I kind of thought he was. Okay.

MR. WHATLEY: Can I say something, Your Honor? I’m sorry.

THE COURT: Yes.

MR. WHATLEY: I just feel a little put down having my
daughter here.

THE COURT: Well, I understand that. But, it’s not the Court’s
choice to call witnesses.

MR. WHATLEY: Yes, sir. I understand.

THE COURT: It’s not my case at all. I’m just kind of like the
referee between the State and you. You understand that?

MR. WHATLEY: That’s great. I just wanted you to know that.

THE COURT: Okay.

MR. WHATLEY: I’m sorry.

THE COURT: No. That’s no problem.

MR. WHATLEY: Yes, sir.

THE COURT: Okay. And I think that Mr. Whatley is
competent. I think he’s literate. I think he’s competent to represent
himself in this particular matter. I think he understands, you know, the
criminal prosecution. And I think he understands that we’re gonna be
selecting a jury and we’re gonna have a prosecution. But, you have a
right to put on evidence first. He’s got a right to put on evidence. And
then you’ve got a right to rebut any evidence that he puts on.

MR. KENDRICK: And he should know specifically about the
right that he does have a fundamental right to counsel -

THE COURT: Oh, yes.

MR. KENDRICK: - and that he would be at a disadvantage at
not having one.

THE COURT: Certainly. Certainly. Of course, Mr. Whatley,
you do understand that everybody in a criminal prosecution has a right
to hire the attorney of their choice. You understand that?

MR. WHATLEY: Yes, sir. I wished I could, Your Honor.

THE COURT: Okay. And only if a person is indigent, in other
words, if you have no income, no means, nothing you could mortgage,

18

nothing you can sell, - if you are in that position, then, of course, and
if you qualify, then, of course, an attorney could be appointed to
represent you if you qualify.

MR. WHATLEY: Yes, sir.

THE COURT: And, of course, you understand since you
haven’t been trained in the law, that, of course, that a person who has
been trained in law should be better able to do a better job than you.
You understand that, too?

MR. WHATLEY: Yes, sir. I understand that.

THE COURT: Okay. And you realize all of that, but, realizing
all of that, you’re still here. And you’re still gonna represent yourself.
Correct?

MR. WHATLEY: Yes, sir.

MR. KENDRICK: Okay. Thank you, Judge. I think that’s -

THE COURT: Is there anything else, Mr. Kendrick?

MR. KENDRICK: No, sir.

THE COURT: Okay. Mr. Whatley, is there any other
preliminary matters that you want to address? You’ve already
addressed the issue of your daughter being present. And I think your
daughter was removed from the courtroom.

MR. WHATLEY: Yes, sir. I want to appreciate y’all letting me
do this on my own behalf. If I had any money whatsoever, I would’ve
hired an attorney, sir. I don’t have anything no more.

THE COURT: Well, -

MR. WHATLEY: I got a heart and a soul. That’s about all I got
left.

THE COURT: Okay. I’m sure that you have undivided interest
in property. I’m sure you own something, sir.

MR. WHATLEY: Yes, sir, but -

THE COURT: I know -

MR. WHATLEY: - it ain’t got no value to me no more.

THE COURT: Well, I know it might not have a value to you,
but, it’s got a value to a banker.

19

MR. WHATLEY: Yes, sir.

THE COURT: And that’s part of the criteria for appointed
counsel. Do you understand?

MR. WHATLEY: Yes, sir. I understand.

THE COURT: Okay.

MR. KENDRICK: And I think we can stipulate, Judge, that he
was advised - that he was to obtain counsel at arraignment within 15
days and -

THE COURT: Within seven.

MR. KENDRICK: - within seven - and has never applied for
counsel in this case.

THE COURT: Well, that’s - that would be a correct statement.

MR. WHATLEY: Your Honor?

THE COURT: Would it be a correct statement, Mr. Whatley, in
this particular case?

MR. WHATLEY: I would -

THE COURT: When you were arraigned I gave you a
scheduling sheet? And I did point out the fact that within seven days,
that’s the time you apply for an attorney or hire one. Is that correct?

MR. WHATLEY: I’ll assume that’s correct, Your Honor. I
contacted Kisatchie in Jonesville, Louisiana. And they sent me a notice
where the [sic] couldn’t represent me.

THE COURT: Well, no. They couldn’t represent you because
that’s - they represent people in civil cases, not criminal cases.

MR. WHATLEY: Yes, sir.

THE COURT: We a public defender. [sic]

MR. WHATLEY: Yes, sir.

THE COURT: He represents people in criminal cases.

MR. WHATLEY: Yes, sir.

THE COURT: If they qualify.

20

MR. WHATLEY: Yes, sir. I talked to the State attorney. And I
thought he was gonna contact me, but he never did. He talked to me.
I’m sorry.

THE COURT: The State attorney?

MR. WHATLEY: Yes, sir.

THE COURT: Who is that?

MR. WHATLEY: He was here yesterday. I don’t know his
name, Your Honor.

THE COURT: Oh, no. He’s a public defender. That’s Mr. Kutch
- Joe Kutch.

MR. WHATLEY: Well, I believe that’s the man.

THE COURT: And you also spoke to Mr. Paul Lemke. From
Jonesville - from Harrisonburg.

MR. WHATLEY: Yes, sir. I just spoke to him.

THE COURT: Yes. He’s not a state man. He’s just an attorney
that people hire to represent them. Okay.

MR. WHATLEY: Yes, sir.

MR. KENDRICK: But, despite all of that, you do wish to
proceed today? That is-

MR. WHATLEY: Yes, sir. I’m ready.

THE COURT: Okay.

MR. KENDRICK: Judge, we’re ready for the jury to come back
in.

THE COURT: Okay. Well, let’s do it. Instruct them that when
they come in that the prospective members of the jury -

We find the above colloquy is problematic for a number of reasons. First of

all, it includes strong indications Defendant was indigent and desired counsel, e.g.,

“Yes sir. I wished [sic] I could, Your Honor,” and “If I had any money whatsoever,

I would’ve hired an attorney, sir. I don’t have anything no more.” Also, the record

reveals Defendant attempted to directly contact indigent counsel on his own.

21

We note this court’s holding in State v. Hayes, 95-1170, pp. 4-5 (La.App. 3

Cir. 3/6/96), 670 So.2d 683, 685-86 cited by both parties. That case explained:

Before being allowed to represent himself, a criminal defendant
must knowingly and intelligently waive his constitutional right to
counsel. State v. Mitchell, 580 So.2d 1006 (La.App. 3 Cir.1991), writ
denied, 613 So.2d 969 (La.1993).

A criminal defendant is guaranteed the right to counsel by both
the state and federal constitutions. U.S. Const. amend. VI; La. Const.
art. I, § 13. Absent a knowing and voluntary waiver of the right to
counsel, no person may be imprisoned unless represented by counsel
at trial. State v. Smith, 479 So.2d 1062 (La.App. 3 Cir.1985), citing
Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530
(1972).

Before a defendant may waive his right to counsel, the trial court
must determine whether the defendant’s waiver of counsel is
intelligently and voluntarily made, and whether his assertion of his
right to represent himself is clear and unequivocal. State v. Hegwood,
345 So.2d 1179 (La.1977). The determination of whether there has
been an intelligent waiver of the right to counsel depends upon the
facts and circumstances surrounding the case, including the
background, experience, and conduct of the accused. State v. Harper,
381 So.2d 468 (La.1980). Although a defendant should be made aware
of the dangers and disadvantages of self-representation, there is no
particular formula which must be followed by the trial court in
determining whether a defendant has validly waived his right to
counsel. State v. Carpenter, 390 So.2d 1296 (La.1980). However, the
record must establish that the accused knew what he was doing and that
his choice was made “with eyes open.” Id. at 1298, citing Faretta v.
California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The Third Circuit Court of Appeal has repeatedly required the
trial court meet the following requirements in determining whether a
defendant has validly waived his right to counsel: first, determine a
defendant’s literacy, competency, understanding and volition, i.e. was
defendant’s waiver of counsel made voluntarily and intelligently; and
second, warn the defendant of the dangers and disadvantages of
self-representation, so that the record establishes that the defendant
knew what he was doing. Mitchell, 580 So.2d 1006; Smith, 479 So.2d
1062; State v. Adams, 526 So.2d 867 (La.App. 3 Cir.1988); State v.
Sepulvado, 549 So.2d 928 (La.App. 3 Cir.1989); and State v.
Bourgeois, 541 So.2d 926 (La.App. 3 Cir.1989), writ denied, 572
So.2d 85 (La.1991).

22

The court went on to reverse the conviction and remand the case, and ordered

the lower court to conduct a hearing on the defendant’s possible indigent status, in

accordance with La.R.S. 15:147.1 Id.

In a more recent case, this court explained:

The record here shows that the trial court did not look into the
voluntariness and intelligence of the defendant’s waiver of counsel, or
warn the defendant of the dangers and disadvantages of
self-representation. The record indicates that, because counsel had
been appointed to assist the defendant prior to his request to represent
himself with assistance, the trial court thought that the defendant had
waived his right to counsel. However, the defendant informed the trial
court that he had not meant to waive his right to counsel and that he
only wanted to be involved in his defense. Therefore, we must
determine whether the defendant actually waived his right to counsel
and, if a waiver occurred, whether the waiver was adequate.

State v. King, 96-1286, p. 5 (La.App. 3 Cir. 10/8/97), 702 So.2d 814, 816-17

(footnote omitted).

In King, the defendant proceeded to trial with counsel sitting in an advisory

capacity. Relying on Hayes and other jurisprudence, the court reversed and

remanded the case, noting, “The trial court failed to make a meaningful inquiry into

the voluntariness and intelligence of the waiver and failed to warn the defendant

about the dangers and disadvantages of self-representation. Therefore, any waiver

that may have arisen under these facts was inadequate.” Id. at 818.

It is noted that the lower court briefly discussed the possible value of

Defendant’s property. That portion of the colloquy suggests the court made a

determination that Defendant was not in fact indigent, without conducting an

indigency hearing as required by La.Code Crim.P. art. 513 and La.R.S. 15:147.

Additionally, we find the trial court’s determination that Defendant had

validly waived counsel rested in part on its belief that it had advised him of his right

1
La.R.S. 15:147 requires an inquiry and determination regarding indigency “not
later than arraignment” and sets procedures to follow if such a determination is made.

23

at arraignment. However, as already pointed out in the error patent discussion, the

record of arraignment shows the lower court did not advise Defendant of his right

to counsel. In discussing the arraignment, the court mentioned giving Defendant a

“scheduling sheet,” but it is not clear whether the sheet contained any information

regarding the right to counsel, and the arraignment record does not show that any

such schedule or form was filed into the record, thus it is not available for appellate

review.

We note Hayes is factually distinguishable, because the judge in that case

refused to appoint trial counsel for the defendant. However, we find Defendant in

the present case is in a similar position to Hayes. In the case sub judice, the trial

court apparently made a summary decision Defendant was not indigent, or simply

ignored Defendant’s indications that he wanted a lawyer but did not have sufficient

funds to hire one. The Defendant retained counsel after the trial, as appellate

counsel, David Stone, also represented him at the post-trial hearing on the motion

for acquittal, and sentencing. It is unclear how counsel came to represent Defendant,

thus it is not clear whether or not Defendant is factually indigent. For example, it

is possible a family member stepped forward with funds after the trial. If this is the

case, Defendant himself could still qualify as indigent. See, e.g., State v. Frank, 99-

553 (La. 1/17/01), 803 So.2d 1.

Further, in the context of the error as assigned, Defendant’s statements that

he would proceed without counsel, even thanking the court for “allowing” him to do

so, merely serve as indications Defendant did not understand his right to have

counsel appointed. Simply put, the overall colloquy suggests Defendant did not

understand his rights. Further, although the court conducted a clear and practical

inquiry into Defendant’s literacy by having him read in open court, there was no

further inquiry into his education or background, or the relative complexity of the

24

case. As shown by the Jackson review in the previously-discussed assignments, the

issue of co-ownership gave this case nuances that Defendant, a layman, may not

have appreciated. As the lower court did not inquire into these factors or similar

issues, it is clear the trial court did not make a sufficient inquiry into whether

Defendant knowingly and intelligently waived his right to obtain trial counsel.

Further, the ultimate result of the colloquy was that Defendant proceeded

without counsel. In the context of the error patent analysis, this lack of

representation gave rise to reversible error, pursuant to La.Code Crim.P. art. 513 and

Fraychineaud.

Considering the above, we find the trial court did not comply with La.Code

Crim.P. art. 513 and the Defendant was not represented at critical stages of trial.

Thus, we reverse Defendant’s conviction and remand the case for re-arraignment

of the Defendant after the lower court complies with La.Code Crim.P. art. 513.

This result renders the fourth assignment moot, as it alleges the sentence is

excessive. However, we will discuss the fifth assignment, because it involves an

error patent.

ASSIGNMENT OF ERROR NUMBER FIVE & ERROR PATENT

The bill of information charges the Defendant with simple criminal damage

to property in excess of $500, in violation of La.R.S. 14:56. The Defendant notes

that pursuant to La.Code Crim.P. art. 470, if the value, price or amount of damage

is essential to the charge or to determine the grade of the offense, the amount must

be contained in the bill of information. The three grades of simple criminal damage

to property are damage less than $500, $500 but less than $50,000, and $50,000 or

more. See La.R.S. 14:56. Thus, the bill is defective as it does not allege with which

of the upper two grades the Defendant is charged. See State v. Upchurch, 00-1290

(La.App. 5 Cir. 1/30/01), 783 So.2d 398; See also State v. Breaux, 96-1516 (La.App.

25

3 Cir. 4/30/97), 693 So.2d 326 (bill found deficient where amount of damage not

stated).

It is unnecessary to discuss how the error would affect the conviction and

sentence in this case because the court has found that the conviction and sentence

be reversed. However, the case is remanded to give the State the opportunity, before

proceeding further, to amend the bill to properly charge an offense. See Breaux,

693 So.2d 326, and State v. Bass, 509 So.2d 176 (La.App. 1 Cir. 1987).

CONCLUSION

Defendant’s conviction and sentence are reversed and remanded for

proceedings in accordance with this opinion. Before proceeding further, the State

is given the opportunity to amend the bill of information to properly charge an

offense.

REVERSED AND REMANDED WITH INSTRUCTIONS.

26

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