State of Louisiana v. Walter R. Cox, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-0774

STATE OF LOUISIANA

VERSUS

WALTER R. COX, SR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 8925-05
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses G. Thibodeaux, Chief Judge, Sylvia R. Cooks and Jimmie
C. Peters, Judges.

AFFIRMED IN PART, VACATED IN PART, RENDERED IN PART,
AND REMANDED WITH INSTRUCTIONS.

John F. DeRosier
District Attorney
Carla Sue Sigler
Assistant District Attorney
1020 Ryan Street
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, LA 71457
(318) 572-5693
COUNSEL FOR DEFENDANT/APPELLANT:
Walter R. Cox, Sr.

Walter R. Cox, Sr.
Camp D. Hawk 3/R
Angola, LA 70712
PRO SE

PETERS, J.

The State of Louisiana (state) charged the defendant, Walter Cox, Sr., by grand

jury indictment with the offenses of manslaughter, a violation of La.R.S.

14:31(A)(2)(a); aggravated obstruction of a highway of commerce, a violation of

La.R.S. 14:96; and aggravated criminal damage to property, a violation of La.R.S.

14:55. A jury found him guilty of all three charges, and, thereafter, the trial court

sentenced him to serve forty years at hard labor for the manslaughter conviction,

fifteen years at hard labor for the aggravated obstruction of a highway of commerce

conviction, and fifteen years at hard labor for the aggravated criminal damage to

property conviction. The trial court ordered that the sentence imposed for the

aggravated criminal damage to property conviction run concurrently with the

sentence imposed on the manslaughter conviction, and that the sentence imposed for

the aggravated obstruction of a highway of commerce conviction run consecutively

to the other sentences. After the trial court denied his motion to reconsider his

sentence, the defendant filed this appeal, contesting both his convictions and

sentences. For the following reasons, we affirm the defendant’s conviction and

sentence for aggravated criminal damage to property, vacate the defendant’s

convictions and sentences for manslaughter and aggravated obstruction of a highway

of commerce, enter a judgment of conviction of negligent homicide, and remand the

matter to the trial court for sentencing on that charge. Additionally, we remand the

matter to the trial court for it to comply with the notification requirements of La.Code

Crim.P. art. 930.8.

DISCUSSION OF THE RECORD

On March 19, 2005, while negotiating a curve on Louisiana Highway 12 in

Calcasieu Parish, Louisiana, the defendant’s vehicle struck another vehicle traveling

in the opposite direction. The driver of the approaching vehicle, Donna McKee, died

as a result of the injuries she sustained in the accident. The collision causing the

death of Mrs. McKee gave rise to the criminal charges against the defendant.

ERRORS PATENT EVALUATION

Louisiana Code of Criminal Procedure Article 920(2) requires that all appeals

be examined for errors that are “discoverable by a mere inspection of the pleadings

and proceedings and without inspection of the evidence.” In performing this

examination of the record now before us, we find one such error.

The trial court failed to advise the defendant of the prescriptive period for filing

post-conviction relief as required by La.Code Crim.P. art. 930.8. That being the case,

we must remand this matter to the trial court with instructions to properly inform the

defendant of the provisions of that article by providing him with written notice. 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.

OPINION

The defendant’s first three assignments of error relate to the sufficiency of the

evidence presented in support of his conviction on each offense.

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

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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.

The evidence establishes that on March 19, 2005, the defendant arrived at the

Beauregard Parish, Louisiana residence of his son, Walter Cox, Jr., at approximately

11:00 a.m. He informed his son that he was fleeing from the police and needed

money. His son instructed the defendant to meet him at a particular truck stop in

Calcasieu Parish and said he would bring him some money. After the defendant left,

Mr. Cox, Jr. telephoned law enforcement officials in an attempt to effect the peaceful

surrender of his father at the truck stop.

The peaceful surrender did not materialize. Instead, the defendant drove away

from the truck stop with law enforcement officers in pursuit. The high-speed chase

that followed involved the defendant running stop signs, driving around police road

blocks, and driving through residential neighborhoods at speeds approaching one

hundred miles per hour. In fact, before the collision that gave rise to the charges now

before us, the defendant had begun to outpace the officers in pursuit, partially because

they had backed off from the chase due to safety concerns.

Officer Roger Thomas of the Calcasieu Parish Sheriff’s Office testified for the

state as an accident reconstruction expert. According to Officer Thomas, no evidence

existed at the scene of the collision that either the defendant or Mrs. McKee ever lost

control of their respective vehicles. Evidence did exist to suggest that Mrs. McKee

attempted to avoid the collision by veering to her right, or away from the defendant’s

approaching vehicle, and that at some point prior to the collision the defendant turned

his vehicle slightly left, toward the victim. This turn to the left resulted in a four-

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degree angle of impact. Officer Thomas estimated the defendant’s speed at the time

of collision at approximately eighty-five miles per hour, and estimated Mrs. McKee’s

speed at approximately forty miles per hour.

With regard to the four-degree left, inward movement by the defendant, Officer

Thomas acknowledged that it could just as accurately be described as a “drift” rather

than a “turn” to the left. However, he discounted the possibility that this movement

might have been caused by loss of control of the vehicle. Had that occurred, Officer

Thomas opined, centrifugal force would have carried the defendant’s vehicle to the

right, not the left. Additionally, he did not credit the movement to the defendant

overcorrecting by steering to the left. Had that occurred, he opined, one would have

expected to find tire marks, i.e., “scuffing,” or “slipping,” left by such an action. No

such marks were found at the scene.

James McKee, the victim’s husband, was in the vehicle with his wife when the

collision occurred. He testified that immediately before the collision he observed the

defendant’s vehicle approaching in their lane of traffic. According to Mr. McKee, his

wife moved to the right to avoid the oncoming vehicle, but the defendant then turned

his vehicle into theirs. Mr. McKee testified that in watching the collision unfold, he

“felt like a target.”

The defendant does not dispute the fact that he killed Mrs. McKee in the

collision. Instead, he argues that the evidence does not support proof beyond a

reasonable doubt that he committed any of the offenses.

Aggravated Obstruction of a Highway of Commerce

We agree with the defendant that the state failed in its burden to establish that

he is guilty of aggravated obstruction of a highway of commerce. Louisiana Revised

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Statute 14:96 defines that offense in pertinent part as “the intentional or criminally

negligent placing of anything, or performance of any act, on any . . . highway . . .

wherein it is foreseeable that human life might be endangered.” (Emphasis added.)

The offending act in La.R.S. 14:96 is the “placing” of something in a highway.

The defendant did not place anything in the highway. Instead, he drove his vehicle

on the wrong side of the highway, a violation of La.R.S. 32:71. We do not find that

the act of driving in the wrong lane on a highway equates to placing something in that

highway.

The defendant points out that no court has interpreted La.R.S. 14:96 to find that

someone traveling in the wrong lane of traffic could be obstructing that lane as

contemplated by that statute. The defendant further notes in his brief that to interpret

La.R.S. 14:96 in the manner suggested by the state would make virtually all traffic

offenses involving accidents violations of this statute—that is to say, felonies.

The case cited by the state, State v. Winnon, 28,654 (La.App. 2 Cir. 9/25/96),

681 So.2d 463, writ denied, 96-2576 (La. 3/27/97), 692 So.2d 391, does not support

its position. In Winnon, the defendant “maneuvered his truck perpendicular to the

direction of travel, obstructing the entire roadway, to block [the victim’s] passage on

the road”, exited his vehicle, walked back to the victim’s vehicle, and assaulted her.

Id. at 465. In other words, he used the placement of his vehicle to create an

obstruction of the highway.

Finding that the evidence does not support the defendant’s conviction of

aggravated obstruction of a highway of commerce, we vacate this conviction and

sentence.

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Aggravated Criminal Damage to Property

Louisiana Revised Statute 14:55 defines aggravated criminal damage to

property in pertinent part as “the intentional damaging of any . . . movable, wherein

it is foreseeable that human life might be endangered, by any means other than fire

or explosion.” This offense requires only a general criminal intent. State v.

Davenport, 33,961 (La.App. 2 Cir. 11/1/00), 771 So.2d 837, writ denied, 00-3294

(La. 10/26/01), 799 So.2d 1150. “General criminal intent is present whenever there

is specific intent, and also the circumstances indicate that the offender, in the ordinary

course of human experience, must have adverted to the prescribed criminal

consequences as reasonably certain to result from his act of failure to act.” La.R.S.

14:10(2).

Mr. Cox, Jr. testified that when the defendant came to his home to ask for

money, he said he needed the money to provide for himself. The defendant further

told his son that he was willing to use violence to avoid capture, that he had no

intention of going to jail, and that he would kill himself and anyone that got in his

way. Mr. Cox, Jr. observed a pistol in his father’s vehicle as the two men carried on

their conversation. Additionally, the state introduced the defendant’s written

statement, through the testimony of Mr. Cox, Jr., wherein the defendant wrote, “I

think every day about hitting a truck head on.” When he contacted the authorities,

Mr. Cox, Jr.’s primary goal was to effect his father’s peaceful surrender. His concern

was that, given the defendant’s state of mind, a confrontation between him and law

enforcement personnel would result in someone being injured or killed. Justification

for this concern is clearly found in the defendant’s actions after the police pursuit

began. He placed in jeopardy not only the safety of the law enforcement personnel

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and himself, but also the safety of entire neighborhoods and all of the motorists on

the highways in the vicinity.

In addition to arguing that there was insufficient evidence to support the

conviction of aggravated criminal damage of property, the defendant asserts another

assignment of error: that the trial court erred in improperly limiting his questioning

of Officer Thomas.

During Officer Thomas’s testimony, the defendant’s counsel attempted to

question him concerning the possibility that the defendant’s vehicle movement at the

time of the collision resulted from inattention or over-correction and not an

intentional act. In response, Officer Thomas stated the following:

In order -- again, I go back to what I said earlier. If that is the
case, -- you've got to remember, you have high speed on this vehicle.
You have weight on this vehicle. You have tire slipping on this vehicle.
You have a little -- you have a slight left curve. And if the vehicle starts
one direction or the other, normally you're going to have tire slipping.
And when you have tire slipping, you're going to have some types of
marks. They may be just shadows, they may be just, you know, side slip
marks, whatever, but you're going to have something you can go back
and identify with. We looked closely for that. We didn't see any
evidence of that. So, I don't -- I would not go with that theory.

When the defense counsel attempted to renew questioning along a “possibility” line,

the state objected, asserting that the question had been asked and answered. After a

lengthy bench conference involving a discussion of whether Officer Thomas’s

response that “I would not go with that theory” was a “yes” or “no” answer, the trial

court sustained the state’s objection. This ruling constitutes the substance of this

assignment of error.

It appears that the defendant hoped, by this line of questioning, to make the

point that it was possible for the defendant’s tires to slip on the pavement without

leaving marks. Earlier in the defendant’s cross-examination of Officer Thomas, he

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responded to a similar question by explaining that a number of factors play a part in

the analysis of a vehicle’s movement, including the physical makeup of the curve at

issue, the speed and weight of the vehicle involved, gravity, centrifugal force, and

coefficients of friction of the highway surface. According to Officer Thomas, had the

defendant lost control because of excessive speed, inattentiveness, over-correction,

or even temporary loss of consciousness, the vehicle would move to the right, not to

the left. Additionally, Officer Thomas testified that, in such a situation, he would

have expected to find evidence of tire slipping through the existence of tire marks.

Thus, Officer Thomas had already discounted the point which defense counsel was

attempting to make, and the issue had already been placed before the jury.

Louisiana Code of Evidence Article 611(A) provides:

Except as provided by this Article and Code of Criminal
Procedure Article 773, the parties to a proceeding have the primary
responsibility of presenting the evidence and examining the witnesses.
The court, however, shall exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence so as to:

(1) Make the interrogation and presentation effective for the
ascertainment of the truth;

(2) Avoid needless consumption of time; and

(3) Protect witnesses from harassment or undue embarrassment.

(Emphasis added.)

Although La.Code Evid. art. 611(B) provides that “[a] witness may be cross-

examined on any matter relevant to any issue in the case,” the supreme court has

noted that “[t]he trial judge has discretionary power to control the extent of the

examination of witnesses, provided the court does not deprive the defendant of his

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right to effective cross-examination.” State v. Hawkins, 96-766, p. 6 (La. 1/14/97),

688 So.2d 473, 479.

We find no abuse of the trial court’s discretion in controlling the extent of

examination of Officer Thomas. Furthermore, given the defendant’s state of mind as

established by his son’s testimony, the testimony of Officer Thomas concerning the

specifics of the collision, and the testimony of Mr. McKee concerning the defendant’s

actions in turning into the vehicle he occupied, we find that a rational trier of fact

could have found that the state proved beyond a reasonable doubt the essential

elements of the offense of aggravated criminal damage to property. Therefore, we

find no merit in the assignment of error addressing the sufficiency of the evidence

relating to this offense or the assignment of error relating to the defendant’s cross-

examination of Officer Thomas.

Manslaughter

The defendant’s manslaughter conviction is based on La.R.S. 14:31(A)(2)(a)

which defines the offense as “[a] homicide committed, without any intent to cause

death or great bodily harm . . . [w]hen the offender is engaged in the perpetration or

attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any

intentional misdemeanor directly affecting the person.” In this case, the defendant

was convicted of two felonies not enumerated in La.R.S. 14:30 and 30.1. However,

in its instructions to the jury, the trial court stated that the underlying felony upon

which the manslaughter charge was based was that of aggravated obstruction of a

highway of commerce. Specifically, the trial court instructed the jury as follows:

Thus, in order to convict the defendant of manslaughter, you must
find:

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(1) That the defendant killed Donna S. McKee whether or not he
had an intent to kill; and

(2) That the killing took place while the defendant was engaged
in the commission or attempted commission of aggravated obstruction
of a highway of commerce.

The state voiced no objection to this limiting instruction and, in its closing argument,

postured its position in light of the trial court’s instruction, making no attempt to

incorporate the aggravated criminal damage to property charge in its manslaughter

argument. Additionally, after the jury had begun its deliberations, the trial court

repeated its instructions concerning the manslaughter charge.

As previously stated, the state failed to prove beyond a reasonable doubt that

the defendant committed the offense of aggravated obstruction of a highway of

commerce. “A jury is not required constitutionally to agree on a single theory to

convict a defendant where it is instructed as to alternate theories.” State v. Allen,

41,458, p. 6 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1252, (emphasis added),

(citing Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491 (1991) and State v. Vergo,

594 So.2d 1360 (La.App. 2 Cir.), writ denied, 598 So.2d 373 (La.1992)). See also

State v. Gay, 36,357 (La.App. 2 Cir. 10/23/02), 830 So.2d 356 and State v. Patorno,

01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141. However, when the evidence is

insufficient to establish an offense under the one definition of the offense that has

been argued or presented to the jury, “the conviction cannot be upheld based on

speculation about what verdict the jury would have returned if it had been informed

of a different statutory basis” for establishing a defendant’s guilt, and “[w]hen the

prosecution chooses to limit its case in this fashion, a defendant cannot be convicted

of [the offense charged] based on assumptions about what the jury would have found

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if the prosecution had presented its case differently.” State v. Johnson, 541 So.2d

818, 827 (La.1989).

Given the trial court’s limiting instruction, the state’s argument to the jury, and

our finding that the conviction for aggravated obstruction of a highway of commerce

must be vacated, we must also conclude that the state failed to prove beyond a

reasonable doubt that the defendant committed the offense of manslaughter as set

forth in La.R.S. 14:31(A)(2)(a). However, our analysis does not end with that

conclusion. While we vacate the manslaughter conviction and sentence, we must

now determine whether the trial evidence supports a conviction for a lesser and

included offense.

“It is well-settled that in cases where Louisiana courts have reversed

convictions for insufficiency of the evidence, they have authority to order the entry

of convictions for lesser-included offenses where the records support such lesser

convictions.” State v. Ruiz, 06-30, p. 10 (La.App. 3 Cir. 5/24/06), 931 So.2d 472,

479, affirmed and remanded, 06-1755 (La. 4/11/07), 955 So.2d 81. In this case,

negligent homicide, a violation of La.R.S. 14:32, is a responsive verdict to

manslaughter. La.Code Crim.P. art. 814(A)(5).

Louisiana Revised Statutes 14:32(A) provides that “[n]egligent homicide is the

killing of a human being by criminal negligence.” Additionally, La.R.S. 14:12

provides that “[c]riminal negligence exists when, although neither specific nor

general criminal intent is present, there is such disregard of the interest of others that

the offender’s conduct amounts to a gross deviation below the standard of care

expected to be maintained by a reasonably careful man under like circumstances.”

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Without repeating the factual history, we can safely say that the record before

us overwhelmingly supports a finding that the defendant killed Mrs. McKee by

conduct that amounted to criminal negligence. That being the case, we find the

defendant guilty of the responsive verdict of negligent homicide and remand the

matter to the trial court for sentencing on this charge.

Confrontation Issue

Next, the defendant complains that the trial court erred when it allowed a

hearing to proceed without his presence. We disagree.

Shortly after the jury was sworn and seated, the defendant complained of chest

pains. Outside of the presence of the jury, but in the presence of the defendant, the

trial court announced that it would release the defendant to obtain medical care and

would advise the jury (with instructions) that trial would be in recess until the next

day. The defendant’s counsel specifically waived the defendant’s presence for these

comments to the jury. Immediately thereafter, the defendant was transferred for

medical treatment.

After the defendant left the court room, the trial court held a hearing wherein

both the state and defendant’s counsel questioned Walter Cox, Jr. to ascertain the

nature of his trial testimony and to ensure he would not testify regarding “other

crimes evidence.” At the close of the hearing, the defendant’s counsel stated that he

waived the defendant’s presence for this hearing and that he believed the hearing was

in the defendant’s best interest.

With regard to a defendant’s presence or absence in a particular proceeding,

the supreme court has explained:

A criminal defendant charged with a felony has a right to be
present “[a]t the calling, examination, challenging, impaneling, and

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swearing of the jury, and at any subsequent proceedings for the
discharge of the jury or of a juror. . . .” La.Code Crim. Proc. art.
831A(3); State v. Hampton, 99-2605, pp. 1-2 (La.5/28/99), 737 So.2d
699, 700. The rule is broader than an accused’s due process right to be
present at all stages of trial when his absence might frustrate the fairness
of the proceeding. Id., citing United States v. Gagnon, 470 U.S. 522,
105 S.Ct. 1482, 84 L.Ed.2d 486 (1985).

Yet the provisions of Article 831 are not absolute. In addition, an
accused may waive his presence by voluntary absence, La.Code Crim.
Proc. art. 832, or by not objecting to his absence from an Article
831A(3) hearing, as required under the general contemporaneous
objection rule to preserve the matter. La.Code Crim. Proc. art. 841;
State v. Taylor, 93-2201, pp. 4-7 (La.2/28/96), 669 So.2d 364, 367-69.

State v. Broaden, 99-2124, pp. 14-15 (La. 2/21/01), 780 So.2d 349, 360, cert. denied,

534 U.S. 884, 122 S.Ct. 192 (2001).

In this matter, it is clear that the defendant’s counsel waived his presence and

the defendant failed to object when he had the opportunity upon his return to the

court. Thus, we find no merit in this assignment of error.

Sanity Commission Issue

The defendant initially entered a plea of not guilty to the three offenses.

Thereafter, he filed a motion for the appointment of a sanity commission to determine

his mental capacity to assist his legal counsel in his defense. The trial court

appointed a sanity commission and, after a hearing, rejected the defendant’s argument

that he was unable to assist his counsel in his defense. He now claims, by assignment

of error, that the trial court erred in rejecting this argument.

This issue arose because the defendant sustained severe personal injuries in the

March 19, 2005 collision. He asserted at the hearing on the sanity issue that he

suffers from amnesia caused by the organic brain injury sustained in the collision, and

that this condition precludes his ability to assist in his own defense. He based this

argument on La.Code Crim.P. art. 641, which provides that “[m]ental incapacity to

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proceed exists when, as a result of mental disease or defect, a defendant presently

lacks the capacity to understand the proceedings against him or to assist in his

defense.” (Emphasis added.)

The trial court heard testimony from both of the sanity commission members,

Dr. James M. Anderson, a Lake Charles, Louisiana medical doctor board certified in

psychiatry and neurology, and Dr. Charles Robertson, a Lake Charles, Louisiana

neuropsychologist, on the issue of the defendant’s capacity to assist in his defense.

Additionally, the state introduced the written reports prepared by the experts. While

both doctors generally expressed the opinion that the defendant could not assist in his

defense, they also expressed their lack of comfort in the opinions expressed and

suggested that access to other information might well affect their opinions.

Dr. Anderson testified that he examined the defendant for approximately one

hour and found the defendant to be “knowledgeable, logical, organized, [and]

coherent.” According to the doctor, the defendant claimed to have no history of the

events giving rise to his prosecution. He also stated that such a memory loss was not

inconsistent with someone who suffered organic brain syndrome in an automobile

accident. The doctor concluded that, assuming the memory loss claimed by the

defendant, he would have difficulty in assisting in his defense in that this limited

memory would make it difficult for him to “inform his attorney of distortion or

misstatements of others,” or “to assist his attorney in locating and examining

witnesses.” Despite these concerns over the defendant’s ability to assist in his

defense, Dr. Anderson testified that he would defer to the opinion of Dr. Robertson

on that issue because Dr. Robertson “is well versed in organic brain syndrome and

may have more and better information to provide on this [issue].”

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Much of Dr. Anderson’s concern in formulating his opinion arose from the

defendant’s ability to recall the events which occurred immediately before the

vehicular pursuit and those immediately thereafter, but his inability to recall the

pertinent facts related to the collision. According to the doctor, such selective

memory is normally “a real indication of malingering.” Still, Dr. Anderson found no

evidence of that trait in the defendant. However, he also noted that the defendant was

“well familiar with the legal system.”

Dr. Anderson’s written report corresponded to his testimony in all respects. Of

the seven questions addressed to the doctor relative to the defendant’s ability to

understand the proceedings against him, Dr. Anderson answered only two in the

negative. He found that the defendant was unable to recall and relate facts

concerning his actions and whereabouts at certain times because of the defendant’s

claim that he could not recall those times. Additionally, and again because of the

defendant’s lack of recall, Dr. Anderson concluded that the defendant would not be

able to inform his attorney when others distorted or misstated facts. In answering the

remaining five questions, the doctor concluded that the defendant could assist his

counsel in locating and examining witnesses, could make decisions in response to

well-explained alternatives, could testify relevantly and be cross-examined at trial,

could refrain from irrational behavior at trial, and could tolerate the stress of trial and

the stress of awaiting trial.

Dr. Robertson also examined the defendant for approximately one hour. As a

result of that examination he concluded that the defendant was not competent to stand

trial based solely on his finding that the defendant would be unable to recall facts

surrounding the collision, and therefore would be unable to assist his counsel in

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“identifying witnesses and recognizing the misstatements of other witnesses.”

However, the doctor acknowledged that, in reaching that conclusion, he had to rely

strictly on responses from the defendant. According to Dr. Robertson, the defendant

could recall events that served his interest. Still, the doctor found the defendant to

be believable and his responses to be consistent with his medical history of traumatic

brain injury. Specifically, the defendant informed Dr. Robertson that he had been “in

a motor vehicle accident, transported to a local hospital, treated and released to jail,

and subsequent to that, the night of his incarceration, crashed, basically had to be

taken to a New Orleans hospital for care for brain swelling.”

Dr. Robertson testified that unconsciousness as a result of a brain injury would

usually cause a thirty minute memory loss, but that the length of memory loss

depends on “when the unconsciousness developed, how long it lasted, whether [the

injured party] was unconscious at the scene and recovered consciousness, and then

went unconscious again later on as the brain swelled.” The doctor could not even be

sure that those post-collision facts related to him by the defendant were facts he

remembered or facts supplied to him by others during his recovery.

Dr. Robertson’s written report addressed the same seven questions relative to

the defendant’s ability to assist in his defense as did Dr. Anderson’s. In addressing

the questions, Dr. Robertson concluded that the defendant would not be able to recall

and relate facts pertaining to the collision because of his injuries, that he would not

be able to assist in locating and examining witnesses for the same reason, that he

could not maintain a consistent defense because he felt helpless in his inability to

inform his attorney of the events of the collision, and that listening to testimony and

informing his counsel of distortions or misstatements would be impossible because

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of his absence of recall. Dr. Robertson concluded that the defendant could make

simple decisions in response to well-explained alternatives, could testify in his

defense, and could handle the stress associated with the trial. However, even these

positive findings were subject to the loss of memory limitation. The report

summarizes the doctor’s findings as follows:

Mr. Cox represents an unusual case in that he alleges traumatic brain
injury with loss of consciousness, retrograde amnesia, and a period of
post traumatic amnesia. He told me he was in a coma for 13 days and
was in a hospital for 28 days. He said he was treated and released at
sulfur hospital and transferred to the jail. Subsequent to that, he was
transferred to New Orleans due to swelling of the brain. He alleges no
memory for events from the March accident through late April. If his
medical records bear this out, these conditions cannot be reversed.
However, if he did not lose consciousness in the accident and did not
appear to be altered in the emergency room, he may have memory for
the events before his transfer to New Orleans. I would like an
opportunity to review the medical records available pertaining to his
injuries in the motor vehicle accident and his treatment in New Orleans
to confirm the version he reported. This would be followed up by a
subsequent examination at a later date.

Dr. Robertson summarized the reason for the discomfort on the part of both

doctors as follows:

As Dr. Anderson said he was uncomfortable or was unable to
arrive at an opinion, and I was uncomfortable arriving at an opinion
because I had only the hour I spent with the defendant to base my
opinion on, and if I do, am provided subsequently with an independent
record that I could follow up on that either confirms for or against the
events related by the defendant. I might revise that opinion. But my
opinion about his competency to stand trial at present is restricted only
to his ability to testify and relate facts that are considered to be or that
I believe to be a period of amnesia for him. That would be the only
limit.

(Emphasis added.)

When questioned concerning what he meant by an “independent record,” Dr.

Robertson suggested that information from the officer at the scene or emergency

personnel concerning the defendant’s physical status, i.e., whether he was conscious

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or unconscious at the scene, during transport to the hospital, or upon arrival at the

hospital, would have been most helpful. Additionally it would have been potentially

helpful to know whether he was questioned during these events and, if so, his

responses to those questions.

In finding the defendant competent to assist in his defense, the trial court relied

heavily on the experts’ discomfort in rendering their decisions. Specifically, the trial

court expressed concern with the experts’ reliance on the defendant’s recollection and

found that Dr. Anderson’s statement concerning selective memory as an indication

of malingering to be applicable to the defendant’s related history. That is to say, the

trial court simply did not believe the defendant. Additionally, the trial court found

no difference between the defendant’s memory loss and that of someone whose

memory loss can be related to intoxication, narcotics use, or blackouts or seizures.

Given the experts’ testimony concerning their desire to have more information upon

which to base their opinions, the credibility of the defendant, and the trial court’s

experience in other cases wherein individuals developed selective memory relative

to their criminal liability, the trial court rejected the defendant’s argument that he was

unable to assist in his defense.

The defendant bears the burden of proving his incapacity to stand trial. State

v. Stewart, 03-920 (La.App. 5 Cir. 1/27/04), 866 So.2d 1016, writ denied, 04-449 (La.

6/25/04), 876 So.2d 832. However, the burden is preponderance of the evidence and

not proof beyond a reasonable doubt. Id. In any event, the ultimate determination

regarding competency is within the discretion of the trial court, and the reviewing

court should not reverse that finding absent an abuse of that discretion. State v.

Bridgewater, 00-1529 (La. 1/15/02), 823 So.2d 877, rehearing on other grounds, 00-

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1529 (La. 6/21/02), 823 So.2d 909, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266

(2003); State v. Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, cert. denied, 528

U.S. 893, 120 S.Ct. 220 (1999).

In this matter, the experts’ conclusion that the defendant could not assist in his

defense was not unequivocal, and there is no evidence that the information they

needed for a complete analysis was unavailable. Thus, the defendant failed in his

burden of proof on this issue, and the trial court did not abuse its discretion in

rejecting the defendant’s claim that he was not competent to stand trial. We find no

merit in this assignment of error.

Double Jeopardy Issue

The defendant argues that his convictions for manslaughter and the underlying

felonies violate the constitutional principle that bars double jeopardy. We find that

this argument has no merit as to the conviction for aggravated criminal damage to

property because the state based its manslaughter conviction on the underlying charge

of aggravated obstruction of a highway. Additionally, our finding that the

convictions for both aggravated obstruction of a highway and manslaughter must be

vacated renders the balance of this assignment moot.

Sentencing Issues

The sentences imposed for the three convictions were the maximum

incarceration sentences allowable. La.R.S. 14:31(B), La.R.S. 14:55, La.R.S. 14:96.

However, because we have vacated the convictions for aggravated obstruction of a

highway of commerce and manslaughter, we need only consider the sentence imposed

for the violation of La.R.S. 14:55.

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The analysis for excessive-sentence claims is well-settled. In State v. Barling,

00-1241, 00-1591, (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.

2/1/02), 808 So.2d 331, this court explained:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. The trial court has wide discretion in
the imposition of sentence within the statutory limits and such sentence
shall not be set aside as excessive absent a manifest abuse of discretion.
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate.

Id., at 1042-43 (citations omitted).

To aid in this review, the courts have employed the following three-step

analysis: “The court should consider three factors in reviewing a judge’s sentencing

discretion: 1. the nature of the crime, 2. the nature and background of the offender,

and 3. the sentence imposed for similar crimes by the same court and other courts.”

State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied,

99-433 (La. 6/25/99), 745 So.2d 1183 (citations omitted). Additionally, we note that

maximum sentences should be reserved for the worst offenders. State v. LeBlanc, 578

So.2d 1036 (La.App. 3 Cir. 1991), writ denied, 620 So.2d 833 (La.1993).

In considering the factors set forth in Lisotta, we first note that the nature of the

offense of aggravated criminal damage to property is of a serious nature in that it

contemplates a situation “wherein it is foreseeable that human life might be

endangered.” La.R.S. 14:55. Furthermore, the record before us establishes that the

defendant acted with complete indifference to human life.

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Regarding the second Lisotta factor, we note that during the sentencing process

the trial court found that not only was the defendant without remorse for his actions,

but that his behavior and attitude reflected his personal contempt for the court and the

witnesses, particularly Mr. McKee, despite having caused the death of the man’s

spouse. In addressing the evidence presented concerning the defendant’s willingness

to lose his own life rather than be taken into custody, the trial court noted that,

assuming that evidence to be accurate, there existed no justification for placing so

many innocent individuals in harm’s way and that the defendant’s actions were just

another example of the defendant’s lack of concern for anyone other than himself.

The trial court noted that the evidence established the defendant’s criminal

record to be long and significant. The defendant, who was sixty-four years old at

sentencing, began developing a criminal record in 1960 with charges ranging from

issuing worthless checks to first degree murder. The presentence investigation report

reflects seventeen prior charges and three convictions: breaking and entering and

larceny in Raleigh, North Carolina, in 1961; simple escape in Raleigh, North

Carolina, in 1961; and manslaughter in Amite, Louisiana, 1969. The manslaughter

conviction resulted from a plea agreement involving a first degree murder charge.

While disposition records were apparently not available for most of the other charged

offenses, the majority were violent in nature. In fact, at the time of the offense now

before us, the defendant was fleeing apprehension for aggravated incest.

We conclude, as did the trial court, that the defendant is among the worst of

offenders. With regard to the third Lisotta factor, our examination of the

jurisprudence reveals no decisions on point. However, the record before us supports

our conclusion that the trial court did not abuse its discretion in sentencing the

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defendant to fifteen years at hard labor, the maximum sentence for the offense of

aggravated criminal damage to property.

Pro Se Assignment of Error

The defendant’s pro se assignment of error relates to the trial court’s instruction

to the jury regarding manslaughter. This assignment has been rendered moot by our

decision to vacate the manslaughter conviction.

DISPOSITION

We affirm the defendant’s conviction and sentence for aggravated criminal

damage to property, vacate the defendant’s convictions and sentences for

manslaughter and aggravated obstruction of a highway of commerce, enter a

judgment of conviction of negligent homicide, and remand the matter to the trial court

for sentencing on that charge. Finally, we remand the matter to the trial court with

instructions 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

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

record of the proceedings.

AFFIRMED IN PART, VACATED IN PART, RENDERED IN PART,
AND REMANDED WITH INSTRUCTIONS.

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