State of Louisiana v. Ivory L. Simon

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-416
STATE OF LOUISIANA

VERSUS

IVORY LANE SIMON

**********
APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO.CR-821-02
HONORABLE WENDELL R. MILLER, DISTRICT JUDGE

**********

J. DAVID PAINTER

**********

Court composed of Jimmie C. Peters, Glenn B. Gremillion, and J. David Painter,
Judges.

AFFIRMED.

Annette Roach
Louisiana Appellate Project
P.O. Box 1747
Lake Charles, LA 70602
Counsel for Defendant-Appellant:
Ivory Lane Simon

Kevin D. Millican
Assistant District Attorney-31st Judicial District Court
P.O. Box 1388
Jennings, LA 70546
Counsel for Appellee:
State of Louisiana

PAINTER, JUDGE.

Defendant, Ivory Simon, appeals his conviction for attempted second degree

murder. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

It is undisputed that Defendant shot David Santell Brown in Welsh, Louisiana

on October 17, 2002.

On November 25, 2002, Defendant was charged by bill of information with

attempted second degree murder, in violation of La.R.S. 14:27 and La.R.S. 14:30.1.He

entered a plea of not guilty on December 9, 2002.

Jury selection began on January 24, 2006, and on January 26, 2006, a verdict of

guilty of attempted second degree murder was rendered. On June 26, 2006, Defendant

was sentenced to serve fifteen years at hard labor, without benefit of probation, parole,

or suspension of sentence. A motion to reconsider sentence was filed on July 5, 2006,

and denied at a hearing held on October 16, 2006.

A notice of appeal was filed on July 5, 2006. Defendant is now before this court

asserting the following five assignments of error:

1) The trial court erred in denying the Defendant’s request for a mistrial
when the jury was not properly sequestered as required by La.Code
Crim.P. art. 791.

2) The trial court erred in removing the Defendant from the courtroom
before the start of the trial and in trying the entirety of the case in his
absence in violation of La.Code Crim.P. art. 832.

3) The charging instrument in this case contained improper language.
Since this improper language was read to the jury several times, including
during the final jury instructions in this case, it was not superfluous
language. Its inclusion in the bill of information was not harmless.

4) The trial court improperly denied the Defendant the attorney of his
choice in violation of La.Const. art. I, §13.

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5) The evidence shows that the Defendant was acting in self-defense
when he shot Santell Brown. Alternatively, the evidence admitted in this
trial was insufficient to prove beyond a reasonable doubt that the
Defendant had the specific intent to kill Santell Brown.

DISCUSSION

Sufficiency of the Evidence

Defendant asserts that the evidence adduced at trial was insufficient to support

the conviction. When multiple issues are raised on appeal and sufficiency of the

evidence is one of the alleged errors, the reviewing court should first determine

whether the evidence is sufficient, because a ruling that the evidence was insufficient

would necessitate an acquittal. State v. Hearold, 603 So.2d 731 (La.1992). Defendant

contends that the evidence shows that he was acting in self-defense when he shot

Brown. Alternatively, he asserts that the evidence admitted in this trial was insufficient

to prove beyond a reasonable doubt that Defendant had the specific intent to kill

Brown.

Testimony presented at trial shows that Dwayne Moore approached Defendant

between 10:30 and 11:00 p.m. on October 17, 2002, because Moore’s cousin reported

that Defendant had slapped him. During this encounter, Moore approached Defendant,

and Defendant pulled out a gun. Moore testified that when the gun was touching his

chest, Defendant pulled the trigger. Moore was not shot, apparently because the gun

jammed or was not loaded. Moore testified that he went to Brown’s house, where he

remained until 12:30 or 1:00 a.m.

Moore testified that when he left Brown’s home, he and Brown met Defendant,

who was standing in Brown’s yard, and an argument occurred. The argument lasted

ten to fifteen minutes. Defendant left the yard, and Brown, followed by Moore, Torrey

Washington, Ernest Achane, and Rinehart Thibodeaux, began walking down the street

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toward him. Moore testified that two to three minutes after the group began walking,

Defendant pulled out a gun and shot Brown, who was in front of Anna Mae’s or

Prudomme’s Café, which was located three houses from Brown’s home. Moore

testified that after Brown was shot, he and the other men present began running toward

Defendant and Defendant “started unloading the gun,” indicating that Defendant fired

three more shots. Moore additionally testified that he was not armed and that the group

was not chasing Defendant. Further, the testimony indicates that no one was trying to

engage in a fight with Defendant or to argue with him.

Achane testified that on the night of the shooting, he walked around the corner,

heard Defendant and Brown arguing, and saw Brown coming out of his yard. He

heard Brown ask Defendant why he hit Brown’s “brother” and, as Defendant was

walking away, Defendant turned and shot Brown, who was fifteen to twenty feet away.

Achane testified that when Brown was shot, he was walking with Brown, Moore was

behind Achane, Thibodeaux was standing by his car, and Washington was coming

around the corner in his car.

Thibodeaux testified that he heard arguing, saw Defendant point a gun toward

where Brown and “them” were walking, and saw Defendant fire. Thibodeaux testified

that he was twenty to twenty-five feet away and across the street from the café at that

time. Thibodeaux further testified that Brown was coming up behind Defendant, but

Brown never got close enough to Defendant “where they could get into a fight or

anything,” and no one was chasing Brown. Further, Thibodeaux’s testimony was that

Brown was approximately a house away from Defendant when he was shot.

Thibodeaux testified that Defendant fired three to four shots. Additionally,

Thibodeaux stated that no one but Defendant was armed.

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Brown testified that he was at home on October 17, 2002, when Moore and his

cousin stopped by. He stated that he later walked out of his house and heard Defendant

on the corner hollering and cussing. Brown testified that at that time, Defendant was

coming toward his home but never entered his yard. Brown further testified that he

walked up the road about fifteen yards and began to argue with Defendant. Brown

indicated that Moore, Achane, and Washington were present and standing behind him

at that time. During the argument, he got within five to ten feet of Defendant; however,

he was not chasing Defendant. Brown testified that the others were telling him to

come on, and Defendant turned his back, pulled out a gun, and shot him while the two

were face to face.

Brown admitted he told police that he went outside because he could hear

Defendant down the street. Brown then read the following from his statement to

police:

I left out the - - I left out the house and I could hear Ivory talking, so I
ran out the house and asked him what’s his problem, and he said it don’t
have - - it don’t have shit to do with you, this, and he kept walking on
and he turned and looked at me and he shot me.

Brown admitted that he ran out of his house to pursue Defendant. He testified that

he did not possess a weapon. Brown further testified that he did not think Defendant

was going to shoot him and that he did not say anything to make Defendant turn

around and shoot him. Brown testified that he was shot two to three minutes after he

left his home. Brown further testified that once he was outside, he and Defendant

exchanged about three or four words, and Defendant “just let lose.” Brown testified

that he did not threaten Defendant and only asked why Defendant slapped his cousin.

Brown testified that he was hit by the first shot fired. Brown further testified that

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Defendant slapped his cousin and that Defendant knew how he was, that he was going

to slap Defendant back.

Clarence Simon, Defendant’s father, testified that Defendant lived with him on

October 17, 2002. Simon testified that Defendant used his gun to shoot Brown. Ben

Richard, the Chief of Police in Welsh, testified that there were four empty casings in

the gun used by Defendant when it was recovered by police. Richard further testified

that the shooting occurred approximately one hundred fifty feet from Brown ’s home.

Dr. William Gaar testified that Brown had a gunshot wound to the right side of

the chest and the bullet lodged near his spinal column. Gaar further testified that the

bullet nicked Brown’s heart, which required surgery. Gaar opined that Brown’s

injuries were life-threatening, and he was surprised that Brown was alive.

Defendant does not dispute that he shot Brown on October 17, 2002. However,

Defendant contends that he shot Brown in self-defense.

The use of force or violence upon the person of another is
justifiable, when committed for the purpose of preventing a forcible
offense against the person or a forcible offense or trespass against
property in a person’s lawful possession; provided that the force or
violence used must be reasonable and apparently necessary to prevent
such offense, and that this Section shall not apply where the force or
violence results in a homicide.

La.R.S. 14:19(A).

“In non-homicide cases in which a defendant claims self-defense, Defendant bears the

burden of proof by a preponderance of the evidence.” State v. Runyon, 05-36, p. 29

(La.App. 3 Cir. 11/2/05), 916 So.2d 407, 427, writ denied, 06-1348 (La. 9/1/06), 936

So.2d 207, writ denied, 06-667 (La. 11/17/06), 942 So.2d 526 (citations omitted).

“The issue of self-defense requires a dual inquiry: (1) an objective
inquiry into whether the force used was reasonable under the
circumstances; (2) a subjective inquiry into whether the force was
apparently necessary.” State v. Anderson, 98-492, p. 10 (La.App. 3 Cir.

6

10/28/98); 721 So.2d 1006, 1011, writ denied, 98-2976 (La. 3/19/99);
739 So.2d 781 (citing State v. Hall, 606 So.2d 972 (La.App. 3 Cir. 1992),
writ denied, 93-51 (La. 11/11/94); 644 So.2d 385).

State ex rel. M.N.H., 01-1218, p. 4 (La.App. 3 Cir. 2/6/02), 807 So.2d 1149, 1152, writ

denied, 02-1041 (La. 5/24/02), 816 So.2d 857.

Defendant argues that he shot Brown to avoid being attacked by Brown and the

others who were approaching him as he tried to return home. Defendant further argues

that Brown interjected himself into an argument that was between Defendant and

another person. Additionally, Defendant argues that Brown was pursuing him and he

knew Brown would retaliate. Further, Defendant asserts that he asked Brown to leave

him alone and not to get involved. He argues that he was outnumbered and fired to

protect himself from serious bodily harm that he had reason to believe was imminent

based on the events unfolding and his knowledge of his pursuers.

Defendant did not present any witnesses at trial. The only evidence presented

that weighed on the issue of self-defense was Brown’s testimony that Defendant knew

how he was and knew Brown would slap him because Defendant had slapped Brown’s

cousin. In contrast, testimony from several witnesses indicated that Defendant and

Brown were arguing and were not involved in a physical altercation, that the group of

people present were not rushing toward Defendant when he initially fired the gun, and

that Brown and the other men were not armed.

Although Defendant contends that his actions were justified and that he acted

in self-defense, he failed to prove the force used was reasonable under the

circumstances and that the force was apparently necessary, i.e., that he was in

imminent peril of great bodily harm or reasonably believed himself to be in such

danger.

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Defendant further argues that he did not have the specific intent to kill Brown.

The supreme court has explained:

To sustain a conviction for attempted second degree murder, the
state must prove that the defendant: (1) intended to kill the victim; and (2)
committed an overt act tending toward the accomplishment of the
victim’s death. La. R.S. 14:27; 14:30.1. Although the statute for the
completed crime of second degree murder allows for a conviction based
on “specific intent to kill or to inflict great bodily harm,” La.R.S. 14:30.1,
attempted second degree murder requires specific intent to kill. State v.
Huizar, 414 So.2d 741 (La.1982). Specific intent may be inferred from
the circumstances surrounding the offense and the conduct of the
defendant. La. R.S. 14:10(1); State v. Butler, 322 So.2d 189 (La. 1975);
State v. Martin, 92-0811 (La.App. 5 Cir. 5/31/94), 638 So.2d 411.

State v. Bishop, 01-2548, p. 4 (La. 1/14/03), 835 So.2d 434, 437.

The supreme court has further stated that:

Deliberately pointing and firing a deadly weapon at close range are
circumstances which will support a finding of specific intent to kill. State
v. Seals, 684 So.2d 368, 373 (La.1996) (citing State v. Williams, 383
So.2d 369 (La.1980); State v. Procell, 365 So.2d 484 (La.1978)).

State v. Brown, 03-897, p. 22 (La. 4/12/05), 907 So.2d 1, 18.

The evidence indicates that Defendant pulled a gun and fired at Brown, who was

five to twenty feet from Defendant at that time. Based on this evidence, we find that

the State proved Defendant had the specific intent to kill Brown.

Mistrial

Defendant also contends that the trial court erred in denying his request for a

mistrial when the jury was not properly sequestered as required by La.Code Crim.P.

art. 791.

When the jury notified the trial court that it had reached a verdict, defense

counsel moved for a mistrial on the basis that the jurors were not sequestered in

accordance with La.Code Crim.P. art. 791. Defense counsel informed the trial court

8

that after the jury was charged, three of the jurors were allowed to go home and the

remainder had lunch across the street from the courthouse. The trial court noted that

it finished charging the jury at 12:16 p.m. and the jurors returned at 1:30 p.m. to begin

deliberations. The trial court then questioned each of the twelve jurors individually.

Leslie John Landry informed the court that after the jury was charged, he went

to the jury room, drove home to eat, and returned at 1:15 p.m. Landry stated that

during the time he was gone, he did not discuss the case with anyone and did not allow

anyone else to discuss the case with him. The court questioned him, and he stated that

he did not recall any exchange with a fellow juror regarding the trial. The remaining

eleven jurors were questioned about where they had eaten lunch and whether they had

spoken to anyone about the case, juror or non juror. The trial court subsequently

denied the motion for mistrial, finding there was no prejudice although the jury was

not sequestered for one hour and fifteen minutes before deliberations began.

Louisiana Code of Criminal Procedure Article 791 provides, in pertinent part,

as follows:

A. A jury is sequestered by being kept together in the charge of an
officer of the court so as to be secluded from outside communication,
except as permitted by R.S. 18:1307.2.

....

C. In noncapital cases, the jury shall be sequestered after the
court’s charge and may be sequestered at any time upon order of the
court.

This court discussed art. 791 in State v. Maze, 596 So.2d 218, 219-20 (La.App. 3 Cir.),

writ denied, 604 So.2d 963 (La.1992), as follows:

The purposes of sequestration are to insulate the jurors from
outside influence, or the possibility thereof, and to insure that their
verdict will be based upon the evidence developed at trial. State v.

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Parker, [372 So.2d 1037 (La.1979)] supra; State v. Marchand, 362 So.2d
1090 (La. 1978). So strictly is the prophylactic rule enforced that upon
separation of the jury a presumption of prejudice arises which may only
be rebutted if it affirmatively appears that no prejudice to the accused
could have resulted. See, State v. Parker, supra; State v. Marchand,
supra; State v. Willis, 371 So.2d 1327 (La.1979). However, in a later
case, State v. Miller, 391 So.2d 1159 (La.1980), wherein the trial judge
allowed the jurors to read the newspaper and watch television during
defendant’s trial, the court noted that defendant did not assert that he had
been prejudiced. Rather, defendant requested that the court presume
prejudice. The court found such a presumption to be unwarranted and, in
citing La.C.Cr.P. art. 921, held that because no prejudice had been
shown, any error was harmless.

Defendant asserts that prejudice should be presumed and a new trial ordered due

to the trial court’s failure to comply with La.Code Crim.P. art. 791(C). Defendant

notes that the trial court questioned the jurors but did not question Defendant about the

error as was done in State v. Allen, 97-696 (La.App. 5 Cir. 1/14/98), 707 So.2d 72, writ

denied, 98-432 (La. 6/26/98), 719 So.2d 1054. Defendant additionally notes that none

of the jurors were asked if they read anything about the case or if they had heard

anything about the case on the television or radio. Defendant further asserts that

several jurors were asked if they heard anyone talk about the case and whether anyone

had tried to talk to them about the case, but were not specifically asked if they had

talked about the case. Defendant then suggests that juror Landry was being evasive

in his answers to questions by the trial court and not merely forgetful. Defendant

further suggests Landry’s responses left open the possibility that the jury did not abide

by the trial court’s instructions.

Defendant points out that all jurors were free to leave after the jury instructions

were completed by the trial court and were not accompanied by a deputy or bailiff as

was done in State v. Smith, 96-261 (La.App. 3 Cir. 12/30/96), 687 So.2d 529, writ

denied, 97-314 (La. 6/30/97), 696 So.2d 1004.

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The State argues that although the presumption of prejudice did arise in this case

because of the failure to sequester the jury, the presumption was rebutted by the

testimony of the jurors. The State argues that, because no prejudice resulted, the trial

court properly denied Defendant’s motion for mistrial. In support of its argument, the

State cites Allen, 707 So.2d 72, and State v. Jones, 34,863 (La.App. 2 Cir. 8/22/01),

794 So.2d 107, writ denied, 01-2648 (La. 8/30/02), 823 So.2d 938.

The jury in the case sub judice did not begin deliberations before leaving for

lunch. Accordingly, the failure to sequester the jury in the case at bar was not as

egregious as the failures in those cases cited by Defendant. The jury in this case was

not sequestered for approximately one hour and fifteen minutes while the jurors ate

lunch.

Further, the trial court questioned each of the jurors regarding whether they had

spoken to anyone about the case and whether anyone had spoken to them about the

case. Each of the twelve jurors indicated they had not. While the trial court should

have questioned each juror regarding whether they heard or read anything about the

case in the media, the trial court’s failure to do so did not prejudice Defendant. There

was no evidence that they did so. At the conclusion of jury selection, the trial court

informed the jurors that they should not talk to each other about the case until jury

deliberations and should not talk to anyone else about the case. The jurors were

additionally instructed not to read any news articles or listen to radio or television

reports about the case. After the conclusion of the first day of trial, the trial court

stated the following to the jury: “Remember the instructions, of course, that I gave you

at the outset about not discussing the case with anybody else or each other, or to allow

anybody else to talk to you about it either, okay.”

11

Defendant’s assertion that the trial court did not question him as the trial court

questioned the defendant in Allen is correct. However, there is nothing to indicate that

the courts in Jones and Brown questioned the defendants in those cases. As in Allen,

the jurors in the case at bar indicated they had not talked about the case. The trial

court’s questioning of the jurors in this case far exceeded that done by the trial court

in Brown.

Accordingly, we find that the trial court properly denied Defendant’s motion for

mistrial.

Defendant’s Absence from Trial

Defendant further contends that the trial court violated his constitutional right

to confrontation by conducting his entire trial in his absence and that the trial court

compounded this error in its explanation to the jury as to the reason for his absence

from trial.

Louisiana Code of Criminal Procedure Article 831 provides, in pertinent part,

as follows:

A. Except as may be provided by local rules of court in accordance
with Articles 522 and 551, a defendant charged with a felony shall be
present:

....

(3) At the calling, examination, challenging, impanelling, and
swearing of the jury, and at any subsequent proceedings for the discharge
of the jury or of a juror;

(4) At all times during the trial when the court is determining and
ruling on the admissibility of evidence;

(5) In trials by jury, at all proceedings when the jury is present, and
in trials without a jury, at all times when evidence is being adduced; and

(6) At the rendition of the verdict or judgment, unless he
voluntarily absents himself.

12

However, exceptions to this rule are provided in La.Code Crim.P. art. 832,

which provides, in pertinent part:

A. A defendant initially present for the commencement of trial
shall not prevent the further progress of the trial, including the return of
the verdict, and shall be considered to have waived his right to be present
if his counsel is present or if the right to counsel has been waived and:

(1)He voluntarily absents himself after the trial has commenced,
whether or not he has been informed by the court of his obligation to be
present during the trial; or

(2)After being warned by the court that disruptive conduct will
cause him to be removed from the courtroom, he persists in conduct
which justifies his exclusion from the courtroom.

“A jury trial commences when the first prospective juror is called for examination.”

La.Code Crim.P. art. 761.

On the date jury selection began, the judge had all prospective jurors removed

from the courtroom. At that time, Defendant gave the judge a business card bearing

the name Kevin Patrick Monahan. Defendant informed the trial court that he had

retained Mr. Monahan and that Mr. Monahan had advised him to ask for a continuance.

The trial court told Defendant that he had not received any information from Mr.

Monahan indicating that he represented Defendant; therefore, the trial court gave

Defendant two options: continue to let Jack Nickel, his appointed attorney, represent

him or represent himself. The trial court then informed Defendant that he would be

going to trial that week regardless. An extensive exchange regarding Mr. Monahan’s

representation of Defendant and the trial court’s insistence that Defendant proceed to

trial followed. The trial court denied Defendant’s request for a continuance and told

him that he could represent himself or go to trial with Mr. Nickel. An exchange

ensued in which Defendant refused to represent himself and refused to have Mr. Nickel

13

represent him and which resulted in Defendant being held in contempt of court and

being escorted from the courtroom.

Defendant was subsequently escorted back into the courtroom, at which time the

trial court asked Defendant if he could sit in the courtroom and behave. Defendant

refused to stay if he could not have the attorney he wanted.

With Defendant absent, the jury venire entered the courtroom, the trial court

called roll, and the jury box was purged after excuses were taken. Following a recess,

Defendant was brought back into the courtroom, outside the presence of prospective

jurors. At that time, Defendant informed the trial court that he could not breathe. The

record indicates there was “[u]nintelligible screaming” from Defendant. Defendant

then stated his handcuffs were too tight, his back hurt, and he needed a doctor. The

trial court informed Defendant that if he behaved, he could remain in the courtroom.

Defendant responded as follows: “I need -- I don’t want to remain in no fucking

courtroom. I want to go to the hospital.” Defendant continued to tell the trial court that

he was in pain and needed a doctor. Defendant was again escorted from the

courtroom. The trial court stated that Defendant would be in an adjoining room where

he could watch the proceedings via video feed and that counsel would be allowed to

consult with Defendant during the course of trial. The case at bar was subsequently

called for trial.

During jury selection, the trial court informed the potential jurors Defendant was

not present in the courtroom “[d]ue to his emotional state.” A jury was then selected

and court recessed for the day.

The following day, Defendant was brought into the courtroom prior to any

witnesses being called. The trial court asked Defendant if he wanted to attend the

14

proceedings, at which time Defendant stated three times, “I don’t want to be in here.”

The trial court informed Defendant to let the deputy know if he wanted to speak to his

attorney and that a recess would be taken if he did . Defendant then stated that he did

not have a lawyer. Defendant was returned to the adjoining room to watch the

proceedings via video feed.

On the last day of trial, after the jury was charged but before the verdict was

returned, Defendant was brought back into the courtroom. At that time, the trial court

asked Defendant if he wanted to remain in the courtroom. Defendant stated that he

wished to remain in the adjoining room.

On appeal, Defendant argues that he was not present in the courtroom at the

commencement of his trial as required by La.Code Crim.P. art. 831 and that he was not

furnished counsel to sit with him and assist in communication between counsel trying

the case. Further, he points out that the disruptive behavior, which could be considered

a waiver of his constitutional right to confrontation, occurred prior to the time his case

was called to trial. Defendant argues that he had a right to be present during the start

of his trial and should not have been removed from the courtroom until it was seen

whether his disruptive behavior and abusive actions would continue in the presence of

the jury. Defendant additionally asserts that the trial court’s explanation of his absence

was prejudicial, as the trial court stated that Defendant was not present in the

courtroom due to his emotional state.

However, similar behavior has been held to be a voluntary waiver of the right

to be present during proceedings. State v. Peralta, 01-149 (La.App. 5 Cir. 1/15/02),

807 So.2d 967, writ denied, 02-541 (La. 1/24/03), 836 So.2d 41, State v. Robertson,

15

06-37 (La.App. 1 Cir. 9/20/06), 943 So.2d 1181, writ denied, 06-2391 (La. 4/27/07),

955 So.2d 683.

We find that the trial court did not abuse its discretion by having Defendant

removed from the courtroom prior to jury selection. Further, the trial court asked

Defendant on several occasions whether he wanted to return to the courtroom, but

Defendant continuously informed the trial court that he did not, thus waiving his

presence.

Language of the Charging Instrument

Defendant asserts that the charging instrument in this case contained improper

language. Since this language was read to the jury several times, including during the

final jury instructions in this case, he contends that it was not superfluous language.

Further, he argues that its inclusion in the bill of information was not harmless.

The Defendant was charged with attempted second degree murder. The bill of

information charging the Defendant reads, in pertinent part, as follows:

IVORY LANE SIMON, in the Parish of Jefferson Davis on or about
10117/2002, committed the offense of ATTEMPTED SECOND
DEGREE MURDER in that IVORY LANE SIMON DID WITH
SPECIFIC INTENT ATTEMPT TO KILL OR INFLICT GREAT
BODILY HARM, UPON DAVID SANTELL BROWN, (A FELONY)
IN VIOLATION OF LSA R.S. 14:27 AND 14:30.1. . . .

To support a conviction for attempted second degree murder, the State is

required to prove that a defendant had the specific intent to kill. Specific intent to

inflict great bodily harm is not sufficient. State v. Williams, 95-879 (La.App. 3 Cir.

1/31/96), 670 So.2d 414.

Defendant points out that during voir dire, a potential juror questioned whether

a defendant would be guilty of second degree murder if he merely had the intent to

16

inflict great bodily harm. The clerk read the bill of information during the trial court’s

preliminary instructions to the newly selected jury. Additionally, the incorrect portion

of La.R. S. 14:30.1 was then read by the trial court. During final jury instructions, the

trial court again had the clerk read the bill of information.

The State asserts that the jury instructions did not include the language “or

inflict great bodily harm.” Additionally, the instructions specifically included language

advising the jury not to consider the bill of information as evidence. The State cites

Bishop, 835 So.2d 434, in which the supreme court followed its ruling in State v.

Hongo, 96-2060 (La. 12/2/97), 706 So.2d 419, wherein the supreme court held that an

erroneous jury instruction which improperly included “intent to inflict great bodily

harm” in an attempted second degree murder case was subject to harmless error

analysis. Defendant asserts that the incorrect references in the case at bar raise the

question of whether his trial was fair and whether the jury actually found he had the

specific intent to kill when he shot toward persons coming up behind him. Defendant

further asserts that it would be mere speculation to try to determine the effect this error

had on the outcome of trial.

The State further asserts no error occurred in the case sub judice because the trial

court did not give an improper charge to the jury and instructed the jury that the bill

of information was not to be considered evidence.

In State v. Cavazos, 610 So.2d 127, 128 (La.1992), the supreme court stated the

following:

In outline, the bill tracked the short form provided by La.C.Cr.P. art. 465,
subd. A(7) for charging attempted murder: that “A.B. attempted to
murder C.D.” The additional and somewhat confusing language had no
bearing on the validity of the bill. A bill or indictment which charges an
offense according to the short forms provided by Art. 465 “shall not be
invalid or insufficient because it contains repugnant allegations.

17

Unnecessary allegations may be disregarded as surplusage.” La.C.Cr.P.
art. 486. As the Official Revision Comment to Art. 486 observes, “if the
additional allegations confuse the charge they may very appropriately be
disregarded as surplusage.”

The court then noted that the defendant did not file a pre-trial motion to quash

attacking the bill of information and stated that a post-verdict attack on the sufficiency

of an indictment did not provide grounds for setting aside a conviction “unless the

indictment failed to give fair notice of the offense charged or failed to set forth any

identifiable offense.” Id. The court found that the bill of information clearly identified

the offense charged and met minimal due process requirements.

In State v. Simon, 617 So.2d 153 (La.App. 3 Cir. 1993), the defendant argued

the bill of information was defective. This court found the following:

Although this court has held that it is reversible error to include in
a jury charge the words “or to inflict great bodily harm” when defining
attempted second degree murder, State v. Guin, 444 So.2d 625 (La.App.
3d Cir.1983), such a statement in a bill of information is not error. The
purpose of a bill of information is to fairly inform the defendant of the
charges against him while a charge to a jury is an instruction to the jury
on exactly how to apply the law. La.C.Cr.P. arts. 464 and 802. The
indictment is not fatally defective in that it did in fact fairly inform the
defendant of the charges of which he was accused.

Id. at 156. This court went on to note that the defendant first raised the issue on appeal,

and stated the following:

Defendant did not file a motion to quash the bill of information nor did
he object to its contents during trial. As stated by this court, a defendant
cannot complain of a technical insufficiency in a bill of information after
conviction if it fairly informs the defendant of the criminal charge against
him. State v. Robinson, 549 So.2d 1282 (La.App. 3d Cir.1989). The
defendant must further show he has been prejudiced by surprise or a lack
of notice. Robinson, supra. When a defendant does not claim he was
surprised or prejudiced, this court’s inquiry is limited to whether the bill
of information fairly informed him of the charge. Robinson, supra.

Id.

In light of these cases, we find that the inclusion of “inflict great bodily harm”

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in the bill of information did not constitute error. Further, at no time did Defendant

object to the reading of the bill of information. Therefore, any error concerning the

reading of the bill or prejudice resulting therefrom was waived. La.Code Crim.P. art.

841.

Denial of Choice of Attorney

Defendant contends that the trial court improperly denied him the attorney of his

choice in violation of La.Const. art. I, § 13.

Both the state and federal constitutions guarantee a defendant’s
right to the assistance of counsel. Louisiana Const. art. I, § 13 provides
in relevant part: “At each stage of the proceedings, every person is
entitled to assistance of counsel of his choice, or appointed by the court
if he is indigent and charged with an offense punishable by
imprisonment.” The Sixth Amendment to the United States Constitution
likewise carries such a guarantee. Although the Sixth Amendment
primarily guarantees the right to effective counsel, it also includes the
right to select and be represented by counsel of choice. Wheat v. United
States, 486 U.S. 153, 159, 108 S.Ct. 1692,1696,100 L.Ed.2d 140 (1988);
Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932)
(stating unequivocally, “[i]t is hardly necessary to say that the right to
counsel being conceded, a defendant should be afforded a fair
opportunity to secure counsel of his own choice.”). The right to counsel
of choice, however, is not absolute. In State v. Harper, 381 So.2d 468
(La.1980), this court stated:

As a general proposition a person accused in a criminal trial
has the right to counsel of his choice. State v. Leggett, 363
So.2d 434 (La. 1978); State v. Mackie, 352 So.2d
1297(La.1977); State v. Anthony, 347 So.2d 483 (La.1977).
If a defendant is indigent he has the right to court appointed
counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792,
9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, [407 U.S. 25,
92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)]; State v. Adams, 369
So.2d 1327 (La.1979); City of Baton Rouge v. Dees, 363
So.2d 530 (La.1978). An indigent defendant does not have
the right to have a particular attorney appointed to represent
him. State v. Rideau, 278 So.2d 100 (La. 1973). An
indigent’s right to choose his counsel only extends so far as
to allow the accused to retain the attorney of his choice, if
he can manage to do so, but that right is not absolute and
cannot be manipulated so as to obstruct orderly procedure
in courts and cannot be used to thwart the administration of

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justice. State v. Jones, 376 So.2d 125 (La.1979); State v.
Leggett, supra; State v. Mackie, supra.

Harper, 381 So.2d at 470-71. As this court has also explained, “The
right of defendant to counsel of his choice must be exercised at a
reasonable time, in a reasonable manner, and at an appropriate stage
within the procedural framework of the criminal justice system of which
it is a part.” State v. Lee, 364 So.2d 1024, 1028 (La.1978).

State v. Scott, 04-1312, pp. 7-8 (La. 1/19/06), 921 So.2d 904, 916, cert. denied, 75 U.S.

3167, 127 S.Ct. 137 (2006).

On October 18, 2002, the trial court appointed Tim Cassidy to represent the

Defendant and fixed a bond. A bill of information was filed on November 25, 2002.

On December 9, 2002, Defendant was arraigned and was represented at the

arraignment by Mr. Cassidy. On May 14, 2003, Mr. Cassidy filed a motion to

withdraw as counsel, because he had previously represented the victim in the matter.

On May 19, 2003, Defendant appeared with Daniel Stretcher, Sr. Mr. Stretcher

filed a motion to withdraw on November 17, 2003, indicating he previously

represented one of the State’s key witnesses. On November 18, 2003, the court

appointed Robert Lounsberry, Sr. to represent Defendant. At that time, Defendant

advised the trial court that he might hire his own attorney. The trial court ordered

Defendant to hire an attorney by December 15, 2003, at 9:00 a.m. On September 21,

2004, Mr. Lounsberry informed the trial court that he had a possible conflict, because

he had represented two potential witnesses in the matter. Defendant then stated that

he had no problem with Mr. Lounsberry representing him. Mr. Lounsberry filed a

motion to withdraw on November 17, 2004. Jack Nickel was then appointed to

represent Defendant.

On January 23, 2006, the day prior to jury selection, Defendant asked that Mr.

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Nickel be removed from his case because Mr. Nickel refused to file a motion to quash,

which Mr. Nickel felt was meritless. The trial court asked Defendant if Mr. Nickel

was his fifth attorney and if there would ever be an attorney he was ready to go to trial

with. Defendant stated, “Yeah, that’d be one that I know that’s going to work with

me.” the trial court then replied that the attorney had better be in court at 9:00 the

following morning because Defendant was going to trial. Defendant said he could not

promise the court that because he had to set up an appointment to meet with the

attorney. The trial court subsequently informed Defendant that Mr. Nickel would help

Defendant try the case. The trial court then made the following statement: “I’ll see you

at nine o’clock (9:00) tomorrow morning, and you better have your attorney -- if you

-- if you have hired another attorney, you better have him or her here; otherwise, Mr.

Nickel will be here with you and you will go to trial tomorrow morning.”

The following day, Defendant appeared for jury selection. At that time, he

handed the trial court a card bearing the name Kevin Patrick Monahan. Defendant

informed the trial court that he had retained Mr. Monahan and that Mr. Monahan had

advised him to ask for a continuance. The trial court then made the following

comments:

We have attempted to have four (4) different attorneys represent you
throughout this proceeding. You have never attempted to hire your own
attorney until now, and I told you yesterday that although you were
welcome to do it that the attorney would need to be prepared to go
forward with the trial today. I have not received a call from Mr. Monahan
or any other indication that he represents you, neither a Motion to Enroll,
a Motion to Continue, nor even a telephone call to say that he’s -- he’s
considering representing you. So other than what you’re telling me here
today, I have no indication Mr. Monahan is representing you, nor is he
here ready to go to trial.

The trial court gave Defendant two options–continue to let Mr. Nickel represent him

or represent himself. Defendant also later informed the trial court that Mr. Monahan

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asked him to have the trial court call his office. During the course of trial, the trial

court stated for the record that his office had not received any information from Mr.

Monahan. As discussed in assignment of error number two, Mr. Nickel represented

Defendant throughout trial.

Defendant argues that even though Mr. Nickel was his fourth attorney, the first

three attorneys withdrew from the case due to prior representation of prosecution

witnesses. Defendant asserts that his request to have Mr. Nickel removed from the

case was his first request to have new counsel appointed. Defendant asserts that the

request was not an attempt to delay trial. Additionally, earlier trial settings had been

upset due to his hospitalization, imprisonment in the federal system, and to resolve a

recusal motion. Defendant further asserts that it was unclear whether his conflict with

Mr. Nickel was apparent until immediately prior to trial.

Defendant argues that the trial court’s misunderstanding of the history of his

case led to his being denied the right to counsel of his choice and the right to

confrontation discussed in assignment of error number two. Defendant further asserts

that proper consideration was not given to the facts of this case in the denial of his right

to counsel of his choice and that this error is reversible per se under the specific facts

in this case.

The State asserts that the trial court did not abuse its discretion when denying

Defendant’s request for a continuance, because the offense occurred thirty-nine months

prior to trial. During that period, Defendant had four appointed attorneys and never

retained counsel, although he had ample time to do so. Additionally, the trial court

noted that even though Defendant had more than two months between the November

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15, 2005 and January 23, 2006 trial fixings, it was not until the morning of trial that

Defendant advised the trial court that he had retained counsel.

In State v. Bonit, 05-795 (La.App. 1 Cir. 2/10/06), 928 So.2d 633, writ denied,

06-1211 (La. 3/16/07), 952 So.2d 688, the trial court found that the defendant had

waited too long to move to hire his own attorney. The first circuit found that the trial

court correctly denied the motion to hire private counsel, stating the day of trial was

too late of a date for the defendant to assert his right to hire private counsel. The court

further noted that granting the motion would have obstructed the orderly procedure of

the trial court.

In State v. Dilosa, 01-24 (La.App. 1 Cir. 5/9/03), 849 So.2d 657, writ denied,

03-1601 (La. 12/12/03), 860 So.2d 1153, the first circuit found that the defendant did

not exercise his right to retain counsel in a reasonable time, manner, or stage of the

proceedings where on the date of trial he notified the court that he wanted to retain

private counsel and moved for a continuance. Further, the appellate court found that

the trial court did not err in denying the defendant’s request for a continuance of his

trial.

Based on these cases, Defendant was not denied the counsel of his choice. He

had ample time to hire the attorney of his choice and failed to do so. Defendant’s

attempt to hire the attorney of his choice was not exercised at a reasonable time or at

an appropriate stage of the proceedings.

CONCLUSION

For these reasons, Defendant’s conviction is affirmed.

AFFIRMED.

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