State of Louisiana v. Nicholas Demond Pitree

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-1513

STATE OF LOUISIANA

VERSUS

NICHOLAS DEMOND PITREE

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 8879-04
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J.
David Painter, Judges.

CONVICTION AFFIRMED;
REMANDED WITH INSTRUCTIONS.

Ronald Augustin Rossitto
District Attorney - Calcasieu Parish
Carla Sue Sigler
Assistant District Attorney - Calcasieu Parish
P. O. Box 3206
Lake Charles, LA 70602
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Carey J. Ellis, III
Louisiana Appellate Project
707 Julia Street
Rayville, LA 71269
Telephone: (318) 728-2043
COUNSEL FOR:
Defendant/Appellant - Nicholas Demond Pitree

Nicholas Demond Pitree
Louisiana State Penitentiary
Camp C, Jaguar, 3/L/13
Angola, LA 70712

THIBODEAUX, Chief Judge.

The Defendant, Nicholas Pitree, appeals his jury convictions for

aggravated rape, La.R.S. 14:42, and second degree kidnapping, La.R.S. 14:44.1. He

asserts that the evidence was insufficient to support the convictions, that he was

denied effective assistance of counsel, and that the trial court erred in denying his

motion to recuse, his motion for a new trial, and his request for self-representation.

Finding no error in any of these contentions, we affirm.

LAW AND DISCUSSION

Insufficiency of the Evidence

Defendant challenges the sufficiency of the evidence, pursuant to

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Defendant’s counsel argues

that the victim’s testimony was not credible. He notes that at trial, she admitted that

she had made false allegations of sexual misconduct against her stepfather.

Defendant’s pro se argument also attacks the victim’s credibility and implies that the

victim went with him willingly and that they had consensual sex. Defendant argues

that the victim had opportunities to escape, to use her cell phone, or otherwise to call

for help.

The general analysis for challenges to the sufficiency of trial evidence

has been explained by this court:

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

(emphasis added).

Defendant acknowledges that under the jurisprudence “credibility is not

ordinarily reviewed, as it lies within the fact finder’s province.” He also observes that

the testimony of a single witness can support a conviction. State v. Bailey, 585 So.2d

1245 (La.App. 2 Cir. 1991).

As previously noted, Defendant was convicted of aggravated rape and

second degree kidnapping. Aggravated rape is defined by La.R.S. 14:42, which

states, in pertinent part:

A. Aggravated rape is a rape committed upon a
person sixty-five years of age or older or where the anal,
oral, or vaginal sexual intercourse is deemed to be without
lawful consent of the victim because it is committed under
any one or more of the following circumstances:

(1) When the victim resists the act to the utmost, but
whose resistance is overcome by force.

....

(4) When the victim is under the age of thirteen
years. Lack of knowledge of the victim’s age shall not be
a defense.

The basic definition of rape is found in La.R.S. 14:41, which states, in

pertinent part:

A. Rape is the act of anal, oral, or vaginal sexual
intercourse with a male or female person committed
without the person’s lawful consent.

2

B. Emission is not necessary, and any sexual
penetration, when the rape involves vaginal or anal
intercourse, however slight, is sufficient to complete the
crime.

Second degree kidnapping is defined by La.R.S. 14:44.1, which states,

in pertinent part:

A. Second degree kidnapping is the doing of any of
the acts listed in Subsection B wherein the victim is:

....

(3) Physically injured or sexually abused; . . . .

B. For purposes of this Section, kidnapping is:

(1) The forcible seizing and carrying of any person
from one place to another; . . . .

The victim, B.B.1, was twelve years old on March 8, 2004. On that date,

she left her home at approximately 6:45 a.m. to catch a bus to school. She walked to

the bus stop and, as she was waiting, noticed a car circling the block. Suddenly,

Defendant stopped his car near the bus stop, got out, forced the victim into the

backseat, and drove away. The victim began crying, but Defendant instructed her to

lie down and be quiet. At some point, he told her to “shut up.” Defendant’s initial

seizure of the victim was apparently witnessed by Mikey Barnhardt, a teenager who

lived in the area and knew B.B. On the morning of the offense, he was walking to his

bus stop at the corner of Fall and Kirkman Streets in Lake Charles to go to school.

He started to walk to B.B.’s bus stop, which was at Fall and Center Streets, and saw

a girl there. He could not see for certain that it was B.B.2 Barnhardt saw a blue car

1
The minor victim’s initials are used in accordance with La.R.S. 46:1844(W)(1)(a).
2
The distance between Barnhardt and B.B. was not clearly stated in the testimony; however,
reference to a city map indicates the distance was one block. The record indicates a map was on
display during Barnhardt’s testimony, but the Exhibit Index received by this court states that S-1, an
enlarged map of Lake Charles, was retained by the district court clerk’s office.

3

pull up, and a black male get out and grab the girl. The car then sped away. He

testified the girl did not appear to get into the car voluntarily.

Another witness, Leroy Frank, testified that he lived near the intersection

of Fall and Center Streets. On the morning of the offense, he saw the victim at the

bus stop. While sitting on his back steps drinking coffee, he noticed that a blue car

had stopped at the intersection. He could see only the front of the car from his

vantage point. He heard two car doors close and heard the car pull away. About ten

minutes later, he noticed a book bag on the sidewalk, and the girl was not there.

When the bus passed by and she still had not returned, Frank called the police.

According to the victim’s testimony, Defendant pulled into a public park

and stopped. He then got into the backseat and told her to disrobe; she did so from

the waist down. Then Defendant lowered his pants and inserted his penis into her

vagina.

At that point, one of the park’s caretakers, Leo Giovanni, approached the

area. Defendant pulled up his pants, returned to the front seat, and drove away. The

victim testified that Defendant exited the car and briefly spoke to Giovanni, but

Giovanni testified he did not remember seeing Defendant get out of the car.

The victim further testified that Defendant drove to another location,

where he again parked, got into the back seat, and inserted his penis into her vagina.

The victim testified that it hurt. Eventually, he pulled up his pants and drove away

from the second site. B.B. testified she followed Defendant’s instructions to her,

because she was scared. Defendant told the victim that he knew her family and told

her his name, although she later learned the name he gave was a pseudonym.

According to the victim’s testimony, Defendant asked her if she wanted to go home.

She responded affirmatively, and he dropped her off at the local mall, near a Sears

4

department store. The victim then used her cell phone to call her mother and waited

until her mother and police arrived.

During the ensuing investigation, the victim submitted to a rape exam,

went to the two crime scenes with investigators, and viewed a photographic lineup.

She testified that she identified a picture of Defendant in the lineup. Corporal

Franklin Fondel of the Lake Charles Police Department, who worked as a detective

in the investigation, testified to further details. On the date of the offense, the victim

rode with Fondel and another detective and directed them to each of the crime scenes.

At the first site, a public park, the detectives found a tampon. Fondel testified B.B.

had previously advised the investigators that Defendant had removed the victim’s

tampon at the park and thrown it out through a car window. Fondel’s testimony also

corroborated the victim’s account of the photographic lineup. Another detective,

Takeisha Weldon Robertson, also corroborated the victim’s account regarding her

identification of Defendant’s photo in the lineup.

Fondel explained that he located Defendant and transported him to the

detectives division, where Defendant waived his rights and gave a videotaped

statement. In response to police questioning, he denied any knowledge of the case.

He later gave police a second narrative statement in which he admitted knowing the

victim and that she had been in the car with him on the morning of the offense.

However, he claimed she entered the vehicle and rode with him voluntarily. Further,

he stated the victim wanted to have sex but he did not, and that no sex acts occurred.

The State also adduced testimony from SANE nurse Tammy Bailey.3

She testified she was unable to complete a “speculum exam” of the victim’s vagina,

3
SANE stands for “Sexual Assault Nurse Examiner.”

5

because the area was too tender.4 Bailey examined B.B.’s vaginal area with a

magnification device called a colposcope, and identified torn tissue. The nurse also

took vaginal swabs. Patrick Wojtkwiewicz, director of the North Louisiana Crime

Lab, testified that testing of the vaginal swabs revealed epithelial material consistent

with the victim’s DNA profile and sperm material consistent with those of the

Defendant. Wojtkwiewicz testified that “the probability of finding that profile in

somebody else is one chance in 22.7 trillion.”

As mentioned earlier, B.B. admitted she had made false, and rather

detailed, allegations of sexual misconduct against her stepfather. These allegations

led to the stepfather’s being jailed before B.B. recanted. Also, when the victim was

in second or third grade, she made various allegations of physical abuse against

school personnel, and even her own mother. However, the victim’s account of the

rape was corroborated by the evidence adduced from Bailey and Wojtkwiewicz.

Their scientific evidence supplied the jury with a reasonable basis to conclude, at

the least, that Defendant had forceful vaginal intercourse with B.B. In regard to the

conviction for second degree kidnapping, the victim’s testimony that she was seized

and taken by force was corroborated in part by the testimony of Mikey Barnhardt. To

the extent that B.B.’s credibility was a factor in the case, it was reasonable for the jury

to consider her testimony believable.

Regarding Defendant’s pro se observations that the victim made no

attempt to escape or call for help, we note that B.B. was twelve years old at the time

of the offense and that she was scared. She testified that she wondered “[i]f I was

ever going to see my family again.” The jury reasonably could have concluded that

the young victim was simply too frightened to try escaping or calling for help.

4
Bailey explained that a speculum is a device inserted into the vagina to facilitate visual
inspection of the cervix and vagina.

6

As this court has observed:

It is well-settled that the victim’s credibility is a
matter for the fact finder to assess, and that the appellate
courts will not second-guess such assessments, absent
manifest error. State v. Bourque, 94-291 (La.App. 3 Cir.
11/2/94); 649 So.2d 670. In Bourque, we did overturn
such an assessment, but only where the defendant
presented credible alibi testimony in the face of
questionable eye-witness testimony. (The only witnesses
to the crime were a child and an adult who had consumed
a large amount of alcohol before witnessing the incident.)
In the present case, the victim was not a weak witness. She
positively identified Defendant as her attacker . . . .

State v. James, 99-1858, p. 5 (La.App. 3 Cir. 5/3/00), 761 So.2d 125, 129, writ

denied, 00-1595 (La. 3/23/01), 787 So.2d 1010.

B.B. was a strong witness, and her testimony was bolstered by

corroboration from other sources.

Part of Defendant’s pro se argument implies that the State had to prove

that the sex act was nonconsensual, and failed to do so. However, this is clearly

erroneous under the terms of the statute. As the record shows that B.B. was under

thirteen years of age at the time of the offense, La.R.S. 14:42(4) mandates that

consent or resistance is not an issue in the present case.

For the foregoing reasons, the evidence was sufficient for the jury to

render verdicts of guilty to the crimes of aggravated rape and second degree

kidnapping.

Recusal and Self-Representation

Defendant combines these two assignments, as they both focus on the

trial court’s denial of his pro se Motion to Recuse on June 16, 2005. Alternatively,

he argues the trial court should have allowed him to represent himself.

Recusation of judges is governed by La.Code Crim.P. art. 671, which

states, in pertinent part:
7

A. In a criminal case a judge of any court, trial or
appellate, shall be recused when he:

(1) Is biased, prejudiced, or personally
interested in the cause to such an extent that
he would be unable to conduct a fair and
impartial trial;

....

The procedure for handling such motions is set forth at La.Code Crim.P.

art. 674, which states, in pertinent part:

A party desiring to recuse a trial judge shall file a
written motion therefor assigning the ground for
recusation. The motion shall be filed prior to
commencement of the trial . . . . If a valid ground for
recusation is set forth in the motion, the judge shall either
recuse himself, or refer the motion for hearing to another
judge or to a judge ad hoc, . . . .

The first circuit has explained the application of these two articles:

[T]he defendant asserts that pursuant to La.Code Crim.P.
arts. 673 and 674, Judge Erwin was obligated to either
recuse himself or refer the motion to another judge for
disposition based solely on the defendant’s filing a motion
to recuse. This assertion is erroneous. The mere filing of
a motion to recuse does not compel a judge to act on that
motion. Only when there is a valid ground for recusation
in the motion is a judge obliged to act.

Louisiana Code of Criminal Procedure article 671 A
provides that a judge in a criminal case shall be recused if
he is “biased, prejudiced, or personally interested in the
cause to such an extent that he would be unable to conduct
a fair and impartial trial.” Further, Article 674 provides “If
a valid ground for recusation is set forth in the motion, the
judge shall either recuse himself, or refer the motion for
hearing to another judge or to a judge ad hoc, as provided
in Article 675.”

Construing these articles, the supreme court in State
v. Beavers, 394 So.2d 1218, 1229 (La.1981) stated:

Under the jurisprudence interpreting
there (sic) articles, a motion for recusal must
set forth allegations of fact which state a
statutory cause for recusation before the trial
judge is required to refer the motion to
8

another judge. State v. Collins, 288 So.2d
602 (La.1974). Where, as here, the motion is
based on mere conclusory allegations, the trial
court does not err in refusing to refer the
motion to another judge for hearing. State v.
Maduell, 326 So.2d 820 (La.1976).

The defendant’s motion to recuse Judge Erwin did
not satisfy the statutory provisions regarding the proper
recusation of a judge. The defendant set forth no valid
ground for recusation in his motion to recuse. He did no
more than simply assert that the judge was biased or
prejudiced or personally interested in the case without any
support for the assertion. In the fourth paragraph of his
motion to recuse, the defendant alleged a comment made
by Judge Erwin that is found nowhere in the record. A
motion to recuse a judge must be based on more than mere
general conclusory allegations. State v. Lukefahr, 363
So.2d 661, 663 (La.1978), cert. denied, 440 U.S. 981, 99
S.Ct. 1790, 60 L.Ed.2d 241 (1979). See also State v.
Littleton, 395 So.2d 730, 732 (La.1981); State v. Gordy,
380 So.2d 1347, 1353 (La.1980).

The defendant’s motion was not sufficient to warrant
consideration and, as such, Judge Erwin was not obliged to
hear the motion. Furthermore, on appeal, the defendant has
failed to demonstrate prejudice or that any substantial
rights were affected because of the trial court’s failure to
rule on his motion. La.Code Crim.P. art. 921; State v.
Gaddis, 36-661, pp. 11-12 (La.App. 2 Cir. 3/14/03), 839
So.2d 1258, 1267, writ denied, 2003-1275 (La.5/14/04),
872 So.2d 519 [, cert. denied, 544 U.S. 926, 125 S.Ct. 1649
(2005)].

State v. Maten, 04-1718, pp. 10-11 (La.App. 1 Cir. 3/24/05), 899 So.2d 711, 720, writ

denied, 05-1570 (La. 1/27/06), 922 So.2d 544.

In this case, the trial court held a hearing on the motion on June 16,

2005. The Defendant was upset over an article in a local newspaper. A proffer

accepted by the trial court included the relevant article, which stated in part:

Pitree originally became upset with Ware’s
representation and tried to hire local attorney Hardy
Parkerson, but the deal apparently fell through. Two
weeks ago Pitree agreed to have Ware return as lead
counsel.

9

Pitree is fortunate to have three highly skilled
attorneys looking out for him, Ritchie said Tuesday.

“You’re not Michael Jackson,” he told Pitree. “And
you’re not a celebrity.”

The judge told Pitree he hoped the defendant was not
ignoring his attorneys’ advice on some false hope drawn
from Monday’s acquittal in the pop star’s child molestation
trial. And if Pitree is convicted and receives more prison
time than the plea bargain offered, Ritchie said he would
not want the defendant to claim ineffective counsel.

Ultimately, the trial court stated that the issue of the possible exposure of the jurors

to the newspaper article did not form a basis for recusal. However, Defendant also

argued the comments related in the newspaper article indicated the judge was biased;

this is the sole argument he presents in his pro se brief.

The comments in the newspaper article and acknowledged by the trial

judge at the recusation hearing do not facially reflect bias on the judge’s part. The

trial judge explained his comments in the following colloquy:

THE COURT:

Okay. Your attorneys have looked at that, Mr.
Pitree, and have -- and have decided not to adopt your
motion, okay. And I’m not going to allow this -- anymore
time to be, you know, wasted. We’re Thursday morning
here, just now about to start this trial, and you’ve got three
very good lawyers representing you, and they have read
your motion, they have opted not to adopt your motion,
okay. That ought to tell you something. I know you’ve
been ignoring their advice a lot of the times, that’s why that
whole comment got in the paper the other day. Of course,
that’s your right to do that, okay, but I -- that comment that
I made the other day was just -- just to -- I guess just to
make you aware of -- oh, well, actually, -- well, anyway --

MRS. KILLINGSWORTH [Prosecutor]:

Reality, maybe?

THE COURT:

Well, I’m just -- I just wanted you just to -- that was
just a comment just to kind of make you think for sure
10

about what you were doing, okay. But your attorneys have
opted not to adopt that and I’m not going to hear anymore
about it, and we need to -- we need to proceed. Anything
else, Mr. Ware?

The judge’s explanation of his comments is a reasonable characterization

of them. Thus, as in Maten, he was not required to refer the matter to another judge

for a hearing.

Assuming, arguendo, the motion should have been referred to another

judge, we conclude that it fails on the merits. Our brethren on the fifth circuit

explained:

On March 19, 2003, defendant filed a motion to recuse
Judge Becnel because she stated that the evidence at the
preliminary exam supported a more serious charge, which
resulted in the State amending the charge against defendant
to a more serious charge. Defendant contended Judge
Becnel’s statement showed bias and substantially
prejudiced him.

....

Judge Snowdy denied the motion to recuse finding
that Judge Becnel’s comments did not remove her from her
role as a neutral arbiter. Judge Snowdy explained that the
jury was the ultimate trier of fact. He found that her
comments were simply an expression of her reaction to the
facts she had just heard and that the amended charge was
not necessarily related to Judge Becnel’s comments. Judge
Snowdy noted that the State could have increased or
lessened the charge against defendant based on the facts
revealed at the preliminary exam.

LSA-C.Cr.P. art. 671 outlines the grounds for
recusing a judge. It states that a judge shall be recused
when he “[i]s biased, prejudiced, or personally interested
in the cause to such an extent that he would be unable to
conduct a fair and impartial trial[.]” LSA-C.Cr.P. art.
671(A)(1). A trial judge is presumed to be impartial. The
burden is on the defendant to prove otherwise. State v.
Howard, 01-5 (La.App. 5 Cir. 4/24/01), 786 So.2d 174,
183.

In State v. Dooley, 38,763 (La.App. 2 Cir. 9/22/04),
882 So.2d 731 [, writ denied, 04-2645 (La. 2/18/05), 896
So.2d 30], the Second Circuit upheld the denial of a motion
11

to recuse the trial judge where the defendant claimed the
trial judge’s comments during the preliminary exam were
biased. In Dooley, defendant sought a preliminary exam
hearing after her arrest and before the grand jury issued an
indictment. After the hearing, defendant requested she be
released because of lack of probable cause. The trial judge
denied defendant’s request and stated the evidence
presented established that she was “‘at least guilty of some
form of homicide.’” Id. at 745. Defendant filed a motion
to recuse the trial judge based on his comment which was
denied by the trial judge without referring the matter to
another judge and without a hearing. The Second Circuit
found the trial judge’s comment at the preliminary exam
was merely another way of saying there was probable cause
to charge her with some form of homicide. The court
found defendant failed to show how the trial court’s
statement represented impermissible bias.

The Louisiana Supreme Court has stated that while
trial judges “have a duty to remain impartial and neutral,
judges are not merely umpires or moderators.” State v.
Baldwin, 388 So.2d 679, 686 (La.1980). Rather, a judge
“‘is charged to see that the law is properly administered,
and it is a duty which he can not discharge by remaining
inert.’” Id. at 687-688 (quoting United States v. Marzano,
149 F.2d 923, 925 (2nd Cir.1945)). In Baldwin, defendant
filed a motion to recuse the trial judge on the basis that he
was prejudiced because the judge made comments which
suggested to the prosecution objections which could be
made. The motion was denied and upheld on appeal.

The purpose of a preliminary exam is to determine
whether there is probable cause to charge a defendant with
a crime and hold him over for trial. LSA-C.Cr.P. art. 296;
State v. Gordon, 00-1013 (La.App. 5 Cir. 11/27/01), 803
So.2d 131, 148, writs denied, 02-0362 (La.12/19/02), 833
So.2d 336, and 02-0209 (La. 2/14/03), 836 So.2d 134. In
the present case, Judge Becnel’s comments at the
conclusion of the preliminary exam were equivalent to
saying there was probable cause to hold defendant on some
sex offense. In this instance, the more appropriate sex
offense was more serious than the one with which
defendant was originally charged. Judge Becnel testified
that she had no bias against defendant. Her testimony
shows that her only concern was the proper application of
the law. Based on the foregoing, we find that Judge
Becnel’s comments after the preliminary exam hearing did
not demonstrate partiality or bias against defendant.

12

State v. Strickland, 04-843, pp. 10-12 (La.App. 5 Cir. 3/1/05), 900 So.2d 885, 892-94,

writ denied, 05-820 (La. 6/17/05), 904 So.2d 683.

The court’s comments in the instant case were milder than those at issue

in Strickland, and do not show bias on the judge’s part. Thus, the discussion in

Strickland further strengthens our conclusion that the trial court in this case did not

err in not referring the motion to another judge for a hearing.

However, some of the trial judge’s comments at the June 16 hearing

suggest an outright refusal to rule upon the bias issue, because Defendant was

represented by counsel. Such a refusal to rule upon a pro se motion may be

erroneous, pursuant to State v. Melon, 95-2209 (La. 9/22/95), 660 So.2d 466.

However, as our analysis indicates that the bias claim was without merit, Defendant

was not prejudiced by the trial court’s failure to rule on the issue.

Defendant also complains that the trial court denied his motion for new

trial, and refused to rule on his supplemental motion for new trial. In the court below,

Defendant’s arguments regarding the motions focused on the issue of possible jury

taint; however, his current argument focuses upon allegations the trial judge was

biased. Thus, this portion of his argument fails for reasons discussed in relation to

his motion to recuse.

Defendant also argues the trial court erred by refusing to allow him to

dismiss his three attorneys and represent himself at trial. The following colloquy

occurred:

THE COURT:

Well, I’m just -- I just wanted you just to -- that was
just a comment just to kind of make you think for sure
about what you were doing, okay. But your attorneys have
opted not to adopt that and I’m not going to hear anymore
about it, and we need to -- we need to proceed. Anything
else, Mr. Ware?

13

MR. PITREE:

Your Honor, at this time I’m going to waive Mr.
Ware, Mr. White and Mr. St. Dizier’s representation and
I’m going to ask the Court to move that I proceed pro se.

THE COURT:

No. We’ve been down this road before and I’m not
going to allow the process to be manipulated by you, Mr.
Pitree. You had your opportunity to do that and you asked
to rescind that. As a matter of fact, even when you were
representing yourself, you -- you requested Mr. Ware, and
with his consent, he actually represented you during those
prior proceedings, except for those times when you wanted
to stand and address the Court, okay. You knew what was
coming, you knew this trial was coming, you asked Mr.
Ware to -- if he could possibly come back in and be re-
enrolled as your attorney, and -- and I granted that request
--

MR. PITREE:

Yes, sir.

THE COURT:

--on Monday.

MR. PITREE:

Yes, sir.

THE COURT:

And at this point it just appears to me that you’re just
trying to manipulate the system, you’ve got advice that --
that your attorneys don’t believe that your motion has any
merit, but because you insist on going forward with it,
you’re -- now you’re wanting to represent yourself again.
We’re not going to do that, okay. You’ve had your chance
and we’re going to go forward with this trial. I’m not
relieving your counsel at this point.

In making its ultimate ruling on the issue, the court stated:

Everything that you’ve said just supported what I was
saying and what I’m about to do, okay. You don’t have a
real desire for self-representation, it’s not an unequivocal
desire for self-representation. You just want to get out

14

your argument on that motion to recuse, and so -- and I’m
not -- and let me just cite this case of -- 3rd Circuit case,
State of Louisiana versus Tyronne [sic] Hypolite,
docket number -- I mean, -- well, there’s not even a cite.
There’s a Lexis cite, 2005, Louisiana Appellate, Lexis,
1472, it’s a June 1st, 2005 case, that’s why it doesn’t have
a docket number. It’s a 3rd Circuit case that basically says
your right is not absolute and there’s some similarities in
the facts there and in this case, but I think we have a
stronger case here than what was in here for the -- a
stronger set of facts in our -- in your case than we did here
-- than they had in this Hypolite case for denying your --
or denying your right to self-representation, and I guess in
fact concluding that you have waived your right to self-
representation based on the history of what’s transpired in
this case and based on your reasons for requesting it at this
time,. . . .

On appeal, the State cites State v. Hypolite, 04-1658 (La.App. 3 Cir.

6/01/05), 903 So.2d 1275, which explained:

In the present case, the “Faretta Hearing”5 was not
held until the State was about to call its final witness in its
case-in-chief. In proceedings conducted outside the
presence of the jury, the court questioned Hypolite with
regard to his ability to represent himself. Upon being
asked by the court whether he understood that he did not
know how to try a case, Hypolite responded that it
“shouldn’t be too hard.” Hypolite stated that he felt he
could represent himself, in spite of being informed of the
complexities of trying cases. He asserted that he needed to
represent himself because his lawyers would not ask the
questions he wanted asked. Hypolite opined that all it
would take to represent himself would be common sense.
The court denied the request . . . .

....

The State cites State v. Bridgewater, 00-1529, pp.
19-20 (La. 1/15/02), 823 So.2d 877, 895, modified on
rehearing, 00-1529 (La. 6/21/02), 823 So.2d at 909, cert.
denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089
(2003), which explained that:

Substantively, defendant’s request to
represent himself was not an unequivocal one;

5
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975), focused on the right to self-
representation.

15

rather, it was an obfuscated request to
substitute appointed counsel because of his
disagreement with current counsel’s choice of
trial strategy. Addressing a similar request,
the federal court in [U.S. v.] Frazier-El [204
F.3d 553 (4th Cir.), cert. denied, 531 U.S.
994, 121 S.Ct. 487, 148 L.Ed.2d 459 (2000)],
supra, reasoned:

A trial court must be permitted
to distinguish between a
manipulative effort to present
particular arguments and a
sincere desire to dispense with
the benefits of counsel. The
circumstances surrounding
Frazier-El’s purported waiver of
his right to counsel and the
assertion of his right to proceed
without counsel in this case
suggest more a manipulation of
the system than an unequivocal
desire to invoke his right of
self-representation. Taking the
record as a whole, we are
satisfied that the district court
was justified, when confronted
with Frazier-El’s vacillation
between his request for
substitute counsel and his
request for self-representation,
in insisting that Frazier-El
proceed with appointed counsel.

204 F.3d at 560 (internal citations omitted).

Although the defendant argues that this Court’s
decision in State v. Santos, 99-1897 (La. 9/15/00), 770
So.2d 319, is controlling, that case is easily
distinguishable. In Santos, supra, the defendant made an
unequivocal request to discharge his court-appointed
counsel and to represent himself, explaining that he feared
“‘the Indigent Defender Board is working with the police
of St. Bernard Parish to keep me here.’” 99-1897 at p. 3,
770 So.2d at 321. Unlike the defendant in Santos who was
convinced that no public defender could serve his interests,
in this case defendant specifically stated that it was current
counsel with whom he was dissatisfied. Two other factors
we relied upon in Santos were that the defendant (i)
unequivocally asserted his right to represent himself, and
(ii) made that request “under circumstances which
16

precluded a finding that he was simply engaged in dilatory
tactics.” 99-1897 at p. 4, 770 So.2d at 322. Neither factor
is present here.

First, defendant’s request was not clear and
unequivocal; rather, defendant’s request was, like in
Frazier-El, supra, “a manipulative effort to present
particular arguments” and vacillated between
self-representation and representation by counsel. Second,
given that defendant raised similar arguments before (a
point discussed below) and that he sought a continuance on
the eve of trial, this clearly could be characterized as a
“dilatory tactic.”

....

Bridgewater also demonstrates an independent basis for
rejecting Hypolite’s claims. That basis, the dilatory and
manipulative nature of the motion, found in both
Bridgewater and this case, distinguishes both of them from
Santos.

....

[U]nder Bridgewater’s reasoning, a defendant’s attempt to
use the right to self-representation as a tool of delay or
manipulation puts him outside the protections afforded to
genuine attempts to assert the right. This is a long-standing
principle in Louisiana jurisprudence. See, e.g., State v.
Hegwood, 345 So.2d 1179 (La.1977).

As noted earlier, Hypolite did not move to represent
himself until the State’s case-in-chief was nearly complete.
Therefore, the timing of the request indicates that it was
merely a delay tactic. Much like the defendant in
Bridgewater, Hypolite made earlier attempts to obtain
substitute counsel, apparently due to disagreements
regarding trial strategy. However, he did not clearly ask to
represent himself until the State was about to call its last
witness in its case-in-chief. As a result, his request appears
to be “a manipulative effort to present particular
arguments” rather than “a sincere desire to dispense with
the benefits of counsel.” Bridgewater, 823 So.2d 877, 895,
quoting U.S. v. Frazier-El, 204 F.3d 553, 560 (4th Cir.),
cert. denied, 531 U.S. 994, 121 S.Ct. 487, 148 L.Ed.2d 459
(2000). Therefore, we find no error in the trial court’s
refusal to allow Hypolite to represent himself.

Id. at 1280-83.

17

In the present case, Defendant vacillated on the issue of whether he

desired the assistance of counsel. The minutes show that Ron Ware represented him

at his arraignment on June 14, 2004, and also at a bond reduction hearing on June 16,

2004. On October 8, 2004, Ware again appeared in open court with Defendant, who

asked to represent himself. The court denied the request, and Defendant objected.

On December 10, 2004, the Defendant argued a “Motion to Recuse the Public

Defender’s Office,” which the court granted, although it appointed Ware to assist

him. On February 2, 2005, Ware presented a motion to continue on Defendant’s

behalf; the minutes of that date do not show that Defendant was present. However,

the minutes for February 4 and March 2 clearly state that Defendant was lead counsel

and Ware was his co-counsel.

On May 4, Defendant advised the court that he was attempting to secure

representation by a private attorney. Ware asked to be relieved as co-counsel, and the

court granted the request. Ware advised the court that he would voluntarily assist

Defendant for the remainder of that hearing. The court allowed Ware to sit with

Defendant, but advised the attorney that he would not be recognized as co-counsel.

A Daubert hearing was taken up, apparently in regard to DNA evidence. At that time

another attorney, Richard White, voluntarily conducted cross-examination on

Defendant’s behalf. On the same date, Defendant filed an objection to a discussion

that Ware and an assistant district attorney allegedly had outside Defendant’s

presence. It is not immediately clear when that discussion is supposed to have

occurred, but it apparently occurred during a hearing, as the court advised Defendant

he would receive a transcript. On the same date, a motion to change venue was taken

up. Ware asked to defer it to voir dire, but Defendant asked that the motion be taken

up, and the court so ruled. However, Defendant agreed to Ware’s arguing the motion

on his behalf.
18

On May 6, 2005, Ware again voluntarily appeared to assist Defendant.

Ware made some arguments regarding an admissibility issue, and Defendant adopted

those arguments. At the close of the hearing, Defendant again advised the court that

private counsel would be taking over his case.

On June 13, the trial court’s colloquy with the Defendant indicated that

the Defendant desired the renewed representation of Ron Ware and Charles St. Dizier

of the Public Defender’s Office.

The next colloquy relevant to this issue occurred at the recusal hearing

quoted earlier in this discussion. The record demonstrates that Defendant vacillated

on the issue of self-representation. The day before jury selection began, he willingly

accepted the reappointment of Ware and accepted the appointment of two other

counsel also. Two days later, just as the jury was to begin hearing evidence, he

sought to relieve counsel due to the disagreement over the recusal motion.

Viewed in light of the overall history of Defendant’s maneuvers

regarding the issue of self-representation, we conclude that this portion of

Defendant’s argument lacks merit.

Ineffective Assistance of Counsel

In his final pro se assignment, Defendant argues he received ineffective

assistance of counsel at trial. The analysis for such claims is well-settled:

In Strickland [v. Washington, 466 U.S. 668, 104
S.Ct. 2052, (1984)], the United States Supreme Court set
out a two-prong test for proving ineffective assistance of
counsel. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674. Under Strickland, for a defendant to
establish that he received ineffective assistance of counsel,
he must show (1) “counsel’s representation fell below an
objective standard of reasonableness” and (2) “there is a
reasonable probability that, but for counsel’s
unprofessional error, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 687-88, 694,
104 S.Ct. 2052.
19

State v. Montalban, 00-2739, p. 5 (La. 2/26/02), 810 So.2d 1106, 1110, cert. denied,

537 U.S. 887, 123 S.Ct. 132 (La.2002).

In his pro se argument, Defendant claims his trial counsel were

ineffective for failing to object to the State’s amendment of the indictment. On June

14, 2005, the State amended the bill to add a basis for the aggravated rape charge.

The original bill charged him under La.R.S. 14:42(A)(1), along with the second

degree kidnapping charge. The amendment added La.R.S. 14:42(A)(4) to the

indictment. We note an analogous case from the fifth circuit:

In his second assignment of error, the defendant
contends the trial court erred by allowing the Bill of
Indictment to be amended the day of trial by excluding the
Grand Jury’s reference to simple possession of heroin. The
Bill of Indictment in this case originally charged the
defendant with “possession with intent to distribute
heroin,” and cited as the governing statute “R.S. 40:966A
& C.” The body of the indictment alleges that the
defendant “did knowingly and intentionally possess with
intent to distribute a controlled dangerous substance to wit:
Heroin . . .”

Prior to the commencement of trial, over the
defendant’s objection, the trial court allowed the state to
amend the bill to eliminate the reference to subsection “C”
of the statute, which covers simple possession of heroin.

Louisiana Code of Criminal Procedure article 464
provides:

The indictment shall be a plain, concise, and definite
written statement of the essential facts constituting the
offense charged. It shall state for each count the official or
customary citation of the statute which the defendant is
alleged to have violated. Error in the citation or its
omission shall not be ground for dismissal of the
indictment or for reversal of a conviction if the error or
omission did not mislead the defendant to his prejudice.

The district attorney has the power and authority to
amend grand jury indictments, as to both form and
substance. State v. Neslo, 433 So.2d 73 (La.1983). Unless
prejudice to the defendant results, the state may correct an
erroneous statutory citation in the indictment. State v.
Williams, 392 So.2d 619 (La.1980).
20

In this case the Bill of Indictment states, in two
separate places, that the charge is “possession of heroin
with intent to distribute.” Based on this wording, we find
the intent of the grand jury was to charge the defendant
only under subsection “A” of the statute, which pertains to
distribution and the state’s amendment merely corrected a
technical error.

State v. Hayes, 98-485, p. 9 (La.App. 5 Cir. 11/25/98), 726 So.2d 39, 43, writ denied,

99-55 (La. 5/7/99), 741 So.2d 29.

This court has also taken note of the district attorney’s authority to

amend indictments:

The district attorney has complete authority to
amend indictments, both as to form and substance, at any
time before trial. La.C.Cr.P. art. 487; State v. Guin, 444
So.2d 625 (La.App. 3rd Cir. 1983). The amendments in
the instant case were made one week before trial and on the
morning of trial prior to jury selection, respectively.
Therefore, whether the amendments were substantive or
formal, they were proper.

Upon defense motion and a showing that the
amendment has prejudiced the accused in his defense on
the merits, the trial judge shall grant a continuance.
La.C.Cr.P. art. 489. The purpose behind the continuance
is to protect the accused against prejudicial surprise which
could result from an amendment. State v. Brown, 338
So.2d 686 (La.1976). The trial court has broad discretion
in deciding whether to grant a continuance and his ruling
will not be disturbed unless he arbitrarily and unreasonably
abuses that discretion. State v. Davis, 385 So.2d 193
(La.1980).

State v. Jones, 544 So.2d 1209, 1214 (La.App. 3 Cir. 1989).

The supreme court has explained:

The indictment as originally drawn charged defendant with
the murder of both victims. The amendment merely
clarified that there were two counts, more as a matter of
form than substance. The record shows that no prejudice
was suffered by the defense as is evidenced by the
statement made by defense counsel prior to the district
attorney’s motion to amend the indictment. Defense
counsel stated, “Now, Mr. Sanders is charged with two
counts of first degree murder . . .” This indicates that both
parties believed the defendant had been charged with two
21

counts of first degree murder and that the amending of the
indictment was a mere formality.

Under LSA-C.Cr.P. art. 487, the court may at any
time cause the indictment to be amended in respect to a
formal defect and may order an indictment amended with
respect to a defect of substance at any time before the trial
begins. Such amendments may include adding a charge or
a count to an indictment. State v. Lovett, 359 So.2d 163
(La.1978); State v. Sheppard, 350 So.2d 615 (La.1977).
Trial does not begin for trial purposes until “the first
prospective juror is called for examination.” LSA-C.Cr.P.
art. 761; Lovett, 359 So.2d at 16[6]. Defendant’s
prosecution began with a grand jury indictment, and in
conformity with arts. 487, 489 and 761, the state amended
the indictment before trial. The district judge found that
the amendment did not surprise the defense and made “no
difference whatsoever in the preparation or the defense in
any way, shape or form.” We find this assignment of error
is without merit.

State v. Sanders, 93-01, p. 13 (La. 11/30/94), 648 So.2d 1272, 1283, cert. denied, 517

U.S. 1246, 116 S.Ct. 2504 (1996) (footnote omitted).

Under the jurisprudence cited above, it is clear the State had the

authority to amend the indictment as it did. Defendant’s available remedy was to

request a continuance. However, to obtain such relief, he would have needed to show

that the amendment improperly prejudiced his case. We believe he would have been

unable to do so, as the record indicates he had notice of the nature of the State’s case

before the amendment. The original indictment stated that Defendant was charged

with the “aggravated rape of a female juvenile, DOB 1/21/92.” Also, as the State

points out in its brief, the Bill of Particulars clearly stated that Defendant was being

charged with having vaginal intercourse with a twelve-year-old girl and specifically

cited both La.R.S. 14:42(A)(1) and (A)(4). The State also argues that on discovery,

it provided the victim’s hospital admission sheet, which showed the victim was

twelve on the offense date.

22

Thus, as the State suggests, Defendant had notice of the factual basis of

the aggravated rape charge, and thus would not have been able to demonstrate

sufficient prejudice to obtain a continuance. Likewise, he fails to demonstrate, or

even argue, any specific prejudice, for purposes of the Strickland test.

For the reasons discussed, this assignment lacks merit.

ERROR PATENT

The trial court failed to inform the Defendant of the prescriptive period

for filing post-conviction relief. Such notice is required by La.Code Crim.P. art.

930.8(C). Thus, the trial court is directed to inform the Defendant of the prescriptive

period by sending appropriate written notice to the Defendant within ten days of the

rendition of this opinion. Additionally, the trial court is instructed to file written

proof of the notice in the record of these proceedings. State v. Roe, 05-116 (La.App.

3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06) ___ So.2d ___.

CONCLUSION

Defendant’s convictions and sentences are affirmed. However, the case

is remanded, and the trial court is instructed to inform the Defendant of the provisions

of La.Code Crim.P. art. 930.8 by sending him appropriate written notice within ten

days of the rendition of this opinion. Additionally, the trial court is instructed to file

written proof of the notice in the record of these proceedings.

CONVICTION A F F I RM E D ; REMANDED WITH

INSTRUCTIONS.

23