State of Louisiana v. P. T., Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-665

STATE OF LOUISIANA

VERSUS

P. T., SR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 10022-04
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

John F. DeRosier
District Attorney
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
P.T., Sr.

P.T., Sr.
Rayburn Correction Center - Sleet2
27268 Highway 21
Angie, LA 70426-3030

AMY, Judge.

Factual and Procedural Background

T.S.,1 the stepdaughter of the defendant, P.T., Sr., alleged that over a two-year

period, she and the defendant engaged in various sexual acts, including sexual

intercourse. The defendant was charged by bill of indictment with aggravated incest

in violation of La.R.S. 14:78.1. Following a bench trial, the trial court found the

defendant guilty as charged and sentenced him to twelve years at hard labor, to be

served without benefit of probation, parole, or suspension of sentence. The defendant

now appeals, designating the following as error:

1. The trial court abused its discretion in refusing to require the
State’s witness, T.C., to be placed under the rule of sequestration.

2. The trial court denied P.T., Sr. due process of law and the right to
present witnesses in his defense when it permitted Steven James
Reinholdt to enter a blanket Fifth Amendment privilege against
self-incrimination.

3. The trial court erred in allowing the State’s witness to testify to
“other crimes” evidence beyond the scope of discovery and
further erred in denying defense counsel’s [m]otion for mistrial.

4. The trial court erred in failing to sufficiently consider P.T., Sr.’s
request to either act as co-counsel in his own defense or to be
allowed to represent himself at trial.

5. The trial court erred in not assuring that P.T., Sr.’s waiver of his
right to a jury trial was voluntarily entered.

6. The trial court erred in imposing the restriction against parole
upon P.T., Sr.’s twelve year sentence, resulting in the imposition
of an illegal sentence.

For the following reasons, we affirm as amended and remand with instructions.

1
Pursuant to La.R.S. 46:1844(W), the initials of the victim and the defendant have been
used.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find four errors

patent.

First, the defendant received an illegally lenient sentence for aggravated incest2

in that the trial court did not make any finding as to the defendant’s ability to pay the

victim’s reasonable costs of counseling pursuant to La.R.S. 14:78.1(E), which

provides in pertinent part: “In addition to any sentence imposed under Subsection D,

the court shall, after determining the financial resources and future ability of the

offender to pay, require the offender, if able, to pay the victim’s reasonable costs of

counseling that result from the offense.” Thus, we remand the matter for the trial

court to make a determination as to whether the defendant is able to pay, if any, “the

victim’s reasonable costs of counseling that result from the offense.” If the trial court

finds that the defendant has the ability to pay and that sums are owed, it shall amend

the sentence for aggravated incest.

Second, the defendant’s sentence is also illegally lenient because the trial court

failed to deny the defendant diminution eligibility under La.R.S. 15:537(A), which

requires that diminution of sentence be denied to all persons who are convicted of or

plead guilty to sex offenses, including aggravated incest. Therefore, we amend the

defendant’s sentence to reflect that he is not eligible for diminution eligibility

pursuant to La.R.S. 15:537(A). The trial court is instructed to make a notation in the

minutes reflecting the amendment.

2
Pursuant to State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790 and La.Code Crim.P.
art. 882, this court can recognize and correct illegally lenient sentences.

2

Third, the trial court imposed an illegal sentence when it denied the defendant

the benefit of parole, probation or suspension of sentence. Louisiana Revised

Statutes 14:78.1 does not require or authorize the denial of these benefits for the

offense of aggravated incest. Thus, pursuant to La.Code Crim.P. art. 882, we amend

the defendant’s sentence by deleting the denial of parole, probation, or suspension of

sentence. The trial court is instructed to make an entry in the minutes reflecting this

change.

Fourth, the record does not indicate that the trial court advised the defendant

of the prescriptive period for filing post-conviction relief as required by La.Code

Crim.P. art. 930.8. The trial court is instructed to inform the defendant of the

provisions of Article 930.8 by sending appropriate written notice to the defendant

within ten days of the rendition of its opinion and to file written proof that the

defendant received the notice in the record of the 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), 924

So.2d 163.

Rule of Sequestration

The defendant alleges that the trial court abused its discretion in failing to

require, T.S.’s mother, T.C., to comply with the rule of sequestration. He argues that

although T.S. was a minor at the time the offense occurred, she had obtained the age

of majority before the trial proceedings began. Thus, according to the defendant,

there was no need for T.C. to be present in the courtroom as a registered victim.

Louisiana Constitution Article I, § 25 states in pertinent part that “[a]s defined

by law, a victim of crime shall have the right to reasonable notice and to be present

and heard during all critical stages of preconviction and postconviction

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proceedings[.]” Louisiana Code of Evidence Article 615 provides in pertinent part:

A. As a matter of right. On its own motion the court may, and
on request of a party the court shall, order that the witnesses be excluded
from the courtroom or from a place where they can see or hear the
proceedings, and refrain from discussing the facts of the case with
anyone other than counsel in the case. In the interests of justice, the
court may exempt any witness from its order of exclusion.

B. Exceptions. This Article does not authorize exclusion of any
of the following:

....

(4) The victim of the offense or the family of the victim.

After reviewing the record, we find that the trial court did not abuse its

discretion in not putting T.C. under the rule of sequestration. Pursuant to La.R.S.

46:1844(T)3 and La.Code Evid. art. 615(B)(4), T.C.’s presence in the courtroom was

not a violation of the rule of sequestration. Although the defendant alleges in his

brief that his “ability to properly cross-examine [T.S.] during her testimony was

hampered by the court’s ruling[,]” he later concedes that “[i]t is impossible to look

in hind-sight and evaluate what affect T.C.’s presence in the courtroom had on her

own testimony as well as on the testimony of others, including her daughter T.S.”

3
Louisiana Revised Statutes 46:1844(T) provides in pertinent part:

(1) In order for a victim or designated family member to be eligible to receive
notices hereunder and exercise the rights provided in this Chapter, the victim or
designated family member must complete a form promulgated by the Louisiana
Commission on Law Enforcement. The form shall be completed by the victim or
designated family member and shall be filed with the law enforcement agency
investigating the offense of which the person is a victim, as defined in this Chapter.
The completed victim notice and registration form shall be included in the documents
sent by the law enforcement agency to the district attorney for prosecution. The
district attorney shall include the completed victim notice and registration form with
any subsequent bill of information or indictment that is filed with the clerk of court.
....

(3) The victim and designated family member shall have the right to register
with the appropriate agency at any time and exercise prospectively the rights
guaranteed by this Chapter.

4

The defendant has not shown that he was substantially prejudiced by T.C.’s presence

in the courtroom during T.S.’s testimony; therefore, this assignment has no merit.

Privilege Against Self-Incrimination

The defendant contends that the “trial court denied [him] due process of law

and the right to present witnesses in his defense when it permitted Steven James

Reinholdt to enter a blanket Fifth Amendment privilege against self-incrimination.”

In State v. Darby, 403 So.2d 44, 48 (La.1981), cert. denied, 454 U.S. 1152, 102

S.Ct. 1022 (1982), the supreme court held that “[i]t is reversible error to allow a

witness to claim a blanket privilege [against self-incrimination].” However, the

supreme court concluded that given the facts and circumstances of the case, “no

purpose would have been served in requiring a question-by-question assertion of [the

defendant’s] privilege.” Id. at 49. Moreover, in State v. Haddad, 99-1272, p. 5 (La.

2/29/00), 767 So.2d 682, 686, cert. denied, 531 U.S. 1070, 121 S.Ct. 757 (2001), the

supreme court held that “[a]s a general proposition, when faced with resolving the

tension between a witness’ Fifth Amendment privilege against self-incrimination and

a defendant’s Sixth Amendment right to present a defense, this court has consistently

recognized the witness’s right not to incriminate himself.”

The record shows that on the last day of trial, the defendant called Reinholdt

as a witness. At that point, Ronald Ware, Reinholdt’s attorney, informed the trial

court that his client was incarcerated on allegations of sexual battery, and that he was

under investigation for other sexual offenses including aggravated rape. Ware

explained that he advised Reinholdt to invoke his Fifth Amendment privilege against

self-incrimination and that if called, Reinholdt intended to invoke that right.

In response, the trial court articulated:

5

I was informed that at least from a very basic standpoint that Mr.
Reinholdt was possibly to be called in relation to some testimony from
the alleged victim in this case. Her testimony, when questioned
regarding whether or not she knew Mr. Reinholdt, was that she did not
know Mr. Reinholdt. Quite honestly, Mr. Bouquet [defense counsel]
indicated to me that I believe, and, Mr. Bouquet, please elaborate, I was
informed that he wanted Mr. Reinholdt here to disprove that statement.
With that proviso, do you still have your concerns, Mr. Ware?

Ware stated that given the seriousness of the charges that Reinholdt was possibly

facing and his concern that Reinholdt may open the door to matters that could

undermine his defense when he went to trial, he did not want Reinholdt testifying.

He pointed out that if Reinholdt was found guilty of those charges, he could receive

multiple life sentences.

Despite Reinholdt’s and Ware’s concerns, the defendant called Reinholdt to the

stand. After asking Reinholdt to state his name and address for the record, defense

counsel asked him if he knew T.S., to which he responded, “I plead the 5th.” The

trial court stated that it was not going to require Reinholdt to testify.

Given the circumstances, we find that the trial court did not err in permitting

Reinholdt to invoke his Fifth Amendment privilege against self-incrimination.

Although Reinholdt’s testimony may have impeached T.S.’s testimony, thus raising

the issue of her credibility, it does not offer any exculpatory testimony that would

show that the defendant did not engage in sexual conduct with T.S. Moreover, the

defendant did not allege that the scope of questioning would have gone beyond the

issue of whether or not Reinholdt knew T.S. We note that while the defendant

references the trial court’s granting of a blanket Fifth Amendment privilege, the

record indicates that there was only one issue on which Reinholdt was to be

questioned and that he was invoking his privilege for that particular matter.

Accordingly, the trial court did not err in recognizing Reinholdt’s right to not

6

incriminate himself over the defendant’s right to present a defense.

This assignment is without merit.

Motion for Mistrial

The defendant contends that the trial court erred in allowing testimony beyond

the scope of discovery in that T.S. described an incident that occurred after September

28, 2003, the last date specified in the bill of indictment. According to the defendant,

this constitutes an error in the substance of the indictment, for which the trial court

should have granted a mistrial.

“The date of [the] offense is not a specific element of aggravated incest[.]”

State v. Foshee, 99-1423, p. 6 (La.App. 3 Cir. 4/5/00), 756 So.2d 693, 696. Pursuant

to La.Code Crim.P. art. 487,4 there was no substantive defect in the indictment and

thus, no basis for a mistrial. Moreover, we note that the trial court did not take into

consideration any conduct that occurred outside the time frame referenced in the

indictment.5 Therefore, we find that the defendant’s motion for a mistrial was

4
Louisiana Code of Criminal Procedure Article 487 provides in pertinent part:

A. An indictment that charges an offense in accordance with the provisions
of this Title shall not be invalid or insufficient because of any defect or imperfection
in, or omission of, any matter of form only, or because of any miswriting,
misspelling, or improper English, or because of the use of any sign, symbol, figure,
or abbreviation, or because any similar defect, imperfection, omission, or uncertainty
exists therein. The court may at any time cause the indictment to be amended in
respect to any such formal defect, imperfection, omission, or uncertainty.

Before the trial begins the court may order an indictment amended with
respect to a defect of substance. After the trial begins a mistrial shall be ordered on
the ground of a defect of substance.
5
In its oral ruling, the trial court stated:

Now, [there’s] been much to do regarding whether or not the only sexual
behavior that might have taken place between these two people took place after this
young lady turned the age of 17. Well, I believe the evidence reflects that that date,
magical mystical date, was September 28th, 2003. The incident that brought this all
to a head was November 9th or 10th, 2003. So, if I am to understand the quote,
unquote, defense, as it would be, is that all of the sex that took place, all of the
inappropriate behavior that took place, between these two people happened in about

7

properly denied by the trial court. Accordingly, this assignment has no merit.

Representation

The defendant argues that the trial court erred in failing to consider his request

to act as co-counsel or to be allowed to proceed pro se at trial.

In State v. Brown, 03-897, p. 28 (La. 4/12/05), 907 So.2d 1, 22, cert. denied,

547 U.S. 1022, 126 S.Ct. 1569 (2006), the supreme court stated that “a defendant may

elect to represent himself if the choice is ‘knowingly and intelligently made’ and the

assertion of the right is ‘clear and unequivocal.’” Both the defendant and his court

appointed attorney were present at the hearing held on January 10, 2007. A

discussion was held on the record regarding the defendant’s motion to enter as co-

counsel and/or as pro-se:

[THE DEFENDANT]:
I have just numerous case law that states that I have that right to have an

a six-week period. And I just don’t believe that’s what happened. I recall for
everyone here that one of the things that the defense put into evidence, in fact the
only thing that was submitted into the evidence by the defense, was the matter of the
offense report dated May 2003. [T.S.] testified unequivocally that inappropriate
behavior was happening between these parties at that time. She was 16. There’s no
doubt in my mind that this man is guilty of the charge of aggravated incest, and I’m
finding [him] guilty at this time.

Furthermore, when the defendant commented, during his sentencing hearing, that T.S. was
seventeen when he engaged in sexual activity with her, the trial court reiterated:

I made it very clear in my ruling that I determine that there was no -- I did not
find any sexual behavior at the age of 17. Okay? So let’s go over that one more
time.

....

I’ve made it perfectly clear in my ruling and determination of your guilt that
I did not take [that] into consideration for several reasons. One, because I didn’t feel
there was any evidence. And secondly, the Bill did not include that.

....

And Mr. Bouquet made it perfectly clear. And that’s another thing he aptly
pointed out to the Court was that’s something I could not take into consideration, and
I did not.

8

attorney and be listed as co[-]counsel. Now, my understanding of the
law Pro Se would mean that I would be my own attorney, period,
without counsel, but co[-]counsel would be where I would be considered
co[-]counsel to the main counsel. . . .

And it is, of course, under your discretion to allow me to be co[-]
counsel, providing that, you know, I follow the rules of the Court, and
I intend to do that, Your Honor, with your approval to this motion.

THE COURT:
I think you’re right, but I’m not going to allow you to proceed totally
without an attorney.

[THE DEFENDANT]:
No, sir.

THE COURT:
These charges are too serious.

[THE DEFENDANT]:
I’m not asking that. Pro Se would be that motion.

THE COURT:
The way I would propose it, and I’m going to make sure we
understand each other. We have several motions to address here today,
some of them you have filed yourself, some that Mr. Bouquet has filed.

[THE DEFENDANT]:
Yes, sir.

THE COURT:
Those that you have filed I’m going to allow you to argue. And
you’re going to follow the rules --

[THE DEFENDANT]:
Yes, sir.

THE COURT:
-- of procedure. Then I’m going to allow him to assist you. Are
you going to let him help you?

[THE DEFENDANT]:
Yes, sir.

THE COURT:
The ones that he’s filed he’s going to take care of. Okay?

9

[THE DEFENDANT]:
Okay, sir.

This colloquy indicates that the defendant did not intend to represent himself.

Rather, it shows that the defendant acquiesced in the trial court’s ruling that defense

counsel would be allowed to assist him and argue the motions filed by defense

counsel.

On January 29, 2007, the date that his trial was set to begin, the trial court

clarified its prior ruling regarding the defendant’s request to act as co-counsel:

MRS. COCHRAN [Assistant District Attorney]:
Your Honor, as it relates to that [waiver of jury trial] I believe that
his voicing of that request at the last hearing was in relation to his
request to be co-counsel, and we had offered some objections. I’m not
sure if that’s still his -- you did not rule on that. You had indicated that
you don’t want him representing himself, that he wanted co-counsel, and
you did not rule on that.

THE COURT:
I just -- Do you have an attorney at this time? . . . [Y]ou’re very
intelligent, I don’t dispute that. I’m going to suggest that you give that
intelligence -- let that intelligence assist you with Mr. Bouquet.

[THE DEFENDANT]:
And I will, Your Honor.

THE COURT:
I’m not going to let you start questioning witnesses, and we’ll set
out the rules --

[THE DEFENDANT]:
Right.

THE COURT:
-- but basically Mr. Bouquet’s your attorney from now on.

[THE DEFENDANT]:
Well, that’s another thing, we got to get some witnesses here for
being questioned, and I think that’s going to be a problem for the state,
as far as the victim goes.

THE CLERK:
Your Honor, you’re denying his request to be co-counsel?

10

THE COURT:
Yes.

As the above colloquy illustrates, the defendant did not make a clear and

unequivocal request to represent himself. Furthermore, when the trial court denied

the defendant’s motion on the day of trial, he did not lodge an objection. This

assignment lacks merit insofar as the record demonstrates that the trial court

considered the defendant’s motion to enter as co-counsel and/or pro-se.

Right to Jury Trial

In this assignment of error, the defendant alleges that the “trial court erred in

not assuring that [his] waiver of his right to a jury trial was voluntarily entered.”

In State v. Fuslier, 06-1438, p. 13 (La.App. 3 Cir. 4/4/07), 954 So.2d 866, 874

(quoting State v. Morris, 607 So.2d 1000, 1001 (La.App. 3 Cir. 1992), judgment set

aside on other grounds, 615 So.2d 327 (La.1993)), this court explained that, “[w]hile

one who is entitled to a jury trial may waive that right, such waiver shall not be

presumed but must be established by a contemporaneous record setting forth the

articulated appraisal of that right followed by a knowing and intelligent waiver by the

accused.”

A review of the record reveals that the defendant initially requested a jury trial;

however, he waived that right at the January 10, 2007 hearing. He stated that he was

electing a bench trial so that he would be able to proceed as co-counsel.6 A bench

trial, according to the defendant, would eliminate any potential confusion or

manipulation of the jury. The defendant reiterated his position on the date that his

trial was set to begin:

6
As addressed above, the defendant failed to unequivocally express his desire to act as co-
counsel.

11

THE COURT:
I understand. Again, Mr. Bouquet, do you know what your client
wishes to do at this point, jury or non-jury?

MR. BOUQUET:
I think he can answer, but he’s advised me he wishes --

[THE DEFENDANT]:
-- a trial by judge.

THE COURT:
By judge only?

[THE DEFENDANT]:
Yes, sir.

THE COURT:
So you’re waiving your right to a trial by jury?

[THE DEFENDANT]:
That’s correct.

The record supports the trial court’s determination that the defendant

knowingly and intelligently waived his right to a jury trial. Accordingly, this

assignment of error is without merit.

DECREE

For the above reasons, the defendant’s conviction and sentence are affirmed.

The defendant’s sentence is amended to reflect that diminution eligibility is denied

pursuant to La.R.S. 15:337(A). Additionally, the defendant’s sentence is amended

to delete the denial of probation, parole, or suspension of sentence. The trial court

is instructed to note these amendments in the minutes. This matter is remanded to the

trial court for its compliance with the provisions of La.R.S. 14:78.1(E) and

amendment to the sentence for aggravated incest, if required. Lastly, the trial court

is instructed to inform the defendant of the provisions of La.Code Crim.P. art. 930.8

by sending appropriate written notice to the defendant within ten days of the rendition
12

of its opinion and to file written proof that the defendant received the notice in the

record of the proceedings.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

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