State of Louisiana v. Wilkes Laird

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 09-831

STATE OF LOUISIANA

VERSUS

WILKES LAIRD

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR20071530
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Billy Howard Ezell, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

James David Caldwell
District Attorney - Sixth Judicial District Court
P. O. Box 1389
Tallulah, La 71282
(318) 574-1706
Counsel for Plaintiff/Appellee:
State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Wilkes Laird

Marty L. White
Terri R. Lacy
Asst. Attorney General
P. O. Box 94005
Baton Rouge, LA 70804
(225) 342-7552
Counsel for Plaintiff/Appellee:
State of Louisiana

Wilkes Laird
AVC - Cajun 2 D2
1630 Prison Rd
Cottonport, LA 71327
(318) 876-2891
Counsel for Defendant/Appellant:
Wilkes Laird

GREMILLION, Judge.

Defendant, Wilkes Laird, was convicted by a jury of attempted manslaughter,

in violation of La.R.S. 14:27 and 14:31, and possession of a firearm by a convicted

felon, in violation of La.R.S. 14:95.1. He was adjudicated a second felony offender,

pursuant to La.R.S. 15:529.1, and sentenced to thirty years at hard labor, without the

benefit of probation, parole, or suspension of sentence on the attempted manslaughter

conviction, and to fifteen years at hard labor, with a fine of $1,000, on the firearm

possession charge, with the sentences to run concurrently.1

The brief filed by Defendant’s appointed counsel alleges the trial court erred

by not allowing Defendant to waive his right to counsel and represent himself in this

case. Defendant’s pro se brief alleges the evidence was insufficient to convict him,

and the trial judge improperly denied his motion for recusal.

FACTS

Daniel Johnson and his wife, Crystal, separated periodically, and she

sometimes stayed at Defendant’s home. On the evening of Monday, February 26,

2007, Daniel testified he spoke two or three times to Crystal’s friend, Trista Carroll,

and Defendant’s nephew, Timmy Laird, on the telephone. Trista and Timmy began

calling Daniel around 10:00 or 10:30 p.m. Trista told Daniel she would have Crystal

write a letter telling Daniel what she wanted to do about their marriage. At one point,

Daniel told Timmy on the telephone he would “bust his head.” He was concerned

Timmy would give drugs to Crystal. Daniel went to Defendant’s home to get the

letter around 11:40 p.m. He believed Crystal was living at her mother’s home in

Pitkin.

1
Defendant was previously convicted of simple burglary and sentenced to ten years at hard
labor. He was on parole at the time of the shooting in this case.

1

As Daniel approached the driveway of Defendant’s home, he saw Crystal’s car

turning into it. He passed the driveway to give Crystal time to drop off the letter and

leave, and then he returned to Defendant’s home. When he turned into the driveway,

he saw Crystal’s car there. He exited his vehicle and left the motor running with the

door open.

Daniel knocked on the front door, finding it odd that no lights were on in the

trailer. No one answered the door. He left the steps and tapped on the side of the

trailer, and in a loud voice, said he had just come for the letter. Daniel returned to the

front door and knocked again. As he turned to leave the steps again, he heard the

door rattle as if it were being opened. He turned around and saw Defendant coming

through the door with a rifle over his head.

Defendant “bashed through the glass.” As Daniel went around the corner of

the trailer, he felt a bullet hit him in the upper chest, and he fell. He got up and ran

to the back of the trailer, hearing more gunshots. As Daniel ran toward the next-door

home of Defendant’s mother, he felt another bullet hit his lower back, and he rolled

to the ground. When he looked up, he saw Defendant coming toward him. Although

Defendant was still trying to pull the trigger, the gun would not fire. Defendant

“bashed [Daniel] toward the forehead,” and Daniel grabbed the gun. The two men

“tussled with the gun” as Daniel kept asking Defendant not to kill him. Daniel saw

blood on Defendant’s forehead. Defendant finally stood up, helped Daniel get up,

and walked Daniel to his car, all the time telling Daniel he ought to kill him. Daniel

got in his car, and Defendant went toward the porch with the gun.

As Daniel backed out of the driveway, he heard someone screaming his name,

and he saw Crystal, Timmy, Trista, and Defendant on the porch. He also saw Dustin

2

Willis at the bottom of the steps, returning from Daniel’s car. Daniel called the police

as he drove away in his vehicle to inform them of what had happened, where he was

going, what he was driving, and who shot him. Crystal also made a 911 call in which

she reported shots being fired. Daniel received emergency treatment at Oakdale

Community Hospital and was taken to Shreveport for emergency surgery to stop

internal bleeding. While at Oakdale, Daniel identified Defendant as the person who

had shot him. Dr. Peter Chu treated Daniel at the emergency room for gunshot

wounds to his right chest wall and his lower back. Daniel’s drug test was positive for

methamphetamine.

While Daniel was in Shreveport, he learned of an attempt to serve a restraining

order on him at his mother’s house. Daniel had no knowledge of the restraining order

when he knocked on the door of Defendant’s home.

About three days prior to the incident, Daniel had been at Defendant’s home

talking to him about trading a truck. Defendant was cleaning a .22 rifle at the time;

Daniel believed it was the same gun used to shoot him on February 26, 2007. On that

occasion, Daniel asked Defendant if he was romantically involved with Crystal, and

Defendant said no.

Trista Carroll’s testimony was similar. She said she, Crystal, Timmy, and

Defendant were inside the trailer when they heard someone knock. She looked

through the blinds and told Crystal it was Daniel. Crystal locked herself in the

bathroom and would not talk to Daniel. Defendant jumped up and got a long gun

from on top of some cabinets. Either Defendant or Daniel kicked the door, and

Defendant went outside with the gun. She heard about three shots, and then

3

Defendant came inside. Trista does not remember what happened after that, but she

thinks she may have returned to Timmy’s house across the road.

According to Trista, they were using a lot of cocaine and pills at Defendant’s

home that night—so much that she overdosed and woke up the next day in the

hospital. She did not recall talking to Daniel on the telephone, but she believed

Timmy talked to him. She could not say she was one hundred percent sure of the

facts as she testified because of the drugs. Her testimony was not trustworthy by her

own admission.

Scotty LaBorde, the Oakdale Chief of Police at the time of trial, worked as an

Allen Parish Sheriff’s Deputy on February 26, 2007. He received a call about shots

being fired on Dovie Laird Road around 11:44 p.m. When he turned onto Dovie

Laird Road, he met a vehicle with emergency flashers activated. He turned his

vehicle around and stopped the other vehicle to find Crystal Johnson in it, crying and

upset, with a .22 rifle on the passenger’s side. Crystal blurted she had just shot her

husband. Deputy LaBorde had another deputy transport Crystal to the Oakdale Police

Department, and he proceeded to Defendant’s residence, where he found Dusty Willis

as the only person there.

Detective Chris Oakes testified that the Sheriff’s Department’s investigation

showed the glass from the trailer’s front storm door was missing, with a small amount

of broken glass inside the trailer, and most of it on the exterior. The door seal was not

affected as it would have been if someone had tried to damage it from the outside.

Investigators also found a spent .22 shell casing on the front porch; Detective Oakes

testified the casing would eject at the site where the shooter was located.

4

Detective Oakes also processed the gun involved in the incident for

fingerprints. The gun, examined for latent prints, “lacked sufficient ridge detail for

comparison purposes.” Fingerprint testing was not performed on a pocket knife or

a lighter found in the yard of Defendant’s home.

On March 5, 2007, Defendant contacted Detective Mike Slaney of the Allen

Parish Sheriff’s Department. Detective Slaney had typed up a warrant for Defendant

and had been to his residence looking for him.

The defense submitted testimony in support of the argument that Defendant

was out of town at the time of the shooting. Cecil Laird, Defendant’s brother,

testified Defendant called him around 8:00 p.m. on the night of the incident and asked

Cecil to take him to Hineston, Louisiana, to help John Lewis do some mechanic work

at John’s shop. Crystal was at Defendant’s home when Cecil arrived. Cecil and

Defendant arrived in Hineston around 9:00 p.m. Cecil dropped off Defendant, and

he saw no one at the home of John Lewis, where he left Defendant. The next day,

Cecil heard of the shooting on Dovie Laird Road. While Cecil testified he learned

from their mother that authorities were looking for Defendant, he also testified he had

no knowledge Defendant was a suspect until three or four days later when he

discussed the case with Detective Slaney.

Crystal Johnson testified she and Daniel were married at the time of

Defendant’s trial, but she had left him about two weeks before this incident. At times

Daniel was a good man, but at other times he would accuse her of doing “things that

he would think of” and be verbally, mentally, and physically abusive. On the night

of the incident, Crystal said she was asleep in bed at Defendant’s home, and Dusty

Willis was asleep in the back of the house. Someone woke her or she received a

5

telephone call that her “old man was coming down there fixing to kill everybody.”

Almost immediately, she heard Daniel’s vehicle in the driveway. She did not see

Defendant at his home that night.

When asked whether she could recall what happened, Crystal replied:

Not really. You know, I hear people use stuff like that for an excuse,
temporary—I don’t know, where you can’t remember, but some of my
scenes are, you know, backwards, wishwashed, I don’t know what come
first when I try to think about it.

She testified she recalled being on Sam Cloud Road when a police officer took the

gun from her, and she recalls being at the police station. She does not know how the

gun came into her possession. When asked whether she shot Daniel, Crystal replied:

You know, it doesn’t matter to me, it doesn’t matter who did it. You
know, I sat and prayed days that he wouldn’t come back from a job, pray
that he would be dead maybe I wouldn’t have to put up with this
reaction from him anymore I could deal [sic]. If I didn’t get a call from
the Acadian Ambulance and telling me he has had a motorcycle wreck,
pretty close to death, I had to live through that and he is still here.

When asked again whether she shot her husband, Crystal invoked her Fifth

Amendment privilege.

Although Crystal testified she called 911 when she heard Daniel’s vehicle

approaching, the tape of the call indicates she reported shots being fired. Crystal

explained “events were happening” by the time the 911 operator answered the call,

and she thinks she recalls stating during the call that shots were fired. The tape

recording of the call shows Crystal said she had not been outside. While she invoked

her Fifth Amendment privilege when asked if she hit Daniel in the head with the gun,

she said she did not chase him around the trailer, knock him down, wrestle him, or

break the windows in Daniel’s vehicle. She also invoked her Fifth Amendment rights

when asked what she did when Daniel came to the door.

6

Patty Thompson was Crystal’s foster mother from the time Crystal was thirteen.

On the night of the shooting, Thompson said Daniel called her house and left a

message. Around 10:30 p.m., Thompson “called Crystal and told her that Daniel was

on the rampage.” Crystal called Thompson from her cell phone, crying, around 11:30

p.m. Thompson did not know if Crystal said she shot Daniel, or Daniel had been

shot; she thought Crystal said, “I shot Daniel.”

Daniel had frequently called and come by Thompson’s home during his

separation from Crystal. According to Thompson, Crystal was more afraid of Daniel

when they were separated than when they were together.

Defendant’s alibi witness, John Lewis, testified at the preliminary examination;

when he did not appear at trial in response to a subpoena, the trial court allowed his

testimony from the preliminary examination to be read to the jury. John testified that

Cecil Laird brought Defendant to his home in Hineston, Louisiana, before dark on the

Monday of the shooting, and Defendant stayed until the next day. In a statement

given to Detective Slaney on March 6, 2007, however, John had repeatedly said

Defendant came to his house on a weekend. John had also told Detective Slaney that

Defendant always came to John’s home on his own, in a green van. But at the

preliminary examination, John said he shook hands with Cecil Laird when he dropped

off Defendant at John’s home.

Mark Lewis, John’s son and an officer with the Camp Beauregard Police, was

also subpoenaed for trial and did not appear; thus, his testimony from the preliminary

examination was admitted. Mark lives in a house adjacent to John’s shop. He

testified he saw his father and Defendant at his father’s shop on either February 26

or 27, 2007, around 10:00 or 11:00 p.m., for about twenty or thirty minutes. Mark

7

saw his father and Defendant again the next morning when he left for work around

5:00 a.m. Mark testified he worked a twelve-hour shift, and Defendant was gone

when he returned from work. However, Mark believed that was on a Wednesday,

whereas the shooting occurred on a Monday night or very early on a Tuesday

morning.

DEFENDANT’S SELF-REPRESENTATION

At Defendant’s 72-hour hearing on March 6, 2007, the trial court asked him if

he could afford an attorney; Defendant responded, “no ma’am.” In response to the

trial court’s question, “are you asking the court to appoint you one,” Defendant

responded, “yes, ma’am.” The trial court found Defendant was indigent and

appointed counsel, Judi Abrusley, for him.

Approximately twenty-six pro se motions appear in the record, and the record

references an additional pro se motion sent to the court “on July 25, 2007 for recusal

of [the trial judge]; for consideration of previously filed pro se motions; and for self-

representation.” At one point, the trial court denied Defendant’s pending pro se

motions because he was represented by counsel at the time. This court granted

Defendant’s writ application and remanded the motions for hearing pursuant to State

v. Melon, 95-2209, p.1 (La. 9/22/95), 660 So.2d 466, 477, in which the supreme court

held that the meaningful access to the courts guaranteed by the Louisiana

Constitution requires the lower courts to “accept and consider filings from

represented defendants in a preverdict context whenever doing so will not lead to

confusion at trial.”

Defendant sent Ms. Abrusley a letter advising, “you are fired.” She filed a

motion to withdraw as Defendant’s counsel, and the court appointed another attorney,

8

John Demourelle, to represent Defendant on that date. For reasons discussed in a

sidebar conference and not stated in the record, Mr. Demourelle withdrew as counsel

for Defendant. The trial court then appointed Chad Guidry, who represented

Defendant at trial.

After the trial, Defendant filed a “Motion for the firing of Attorney” in which

he said he no longer needed Mr. Guidry as his attorney because of ineffective

assistance at trial. Defendant withdrew that motion at the hearing of his motion for

new trial and sentencing.

One of Defendant’s pro se motions was titled “Motion to Reconsideration [sic]

the Denial of Previous Motions.” In that motion, Defendant erroneously stated he

had not asked for counsel or requested to have counsel represent him. Defendant’s

rather cryptic motion nonetheless asked “that he be allowed someone to fill-in

because he is (not) able to read nor write . . . [he] has enough asset to ligature, that he

could hire his own counsel but choose, rather to go forward as (Pro-Se).” [Sic].

Mr. Demourelle appeared on behalf of Defendant at a hearing on a number of

motions, including a motion for self-representation. When the trial court asked

Defendant if he wanted to represent himself, he replied, “Well, I need somebody to

represent me or counsel to sit in here cause I can’t read and write the English

language good.” Defendant then indicated he had an eighth grade education, had no

legal training or education, and had done pipeline, carpentry, and sheet metal work.

Although he can read the Bible through “the power of God,” he “can’t spell none of

it,” he “can’t read the English language,” and he “can’t read a newspaper.”

Someone else wrote the pro se pleadings on Defendant’s behalf. When asked

why he wanted to represent himself, Defendant replied, “Well cause—cause I just

9

don’t—nobody else is trying to help me. . . .” Defendant did not understand the

dangers of representing himself or the concept of reasonable doubt. The trial court

was not satisfied Defendant understood the consequences of waiving his right to

counsel, and did not believe he had the ability to adequately present a defense. When

the trial court denied Defendant’s motion for self-representation, Defendant asked,

“Your Honor, could you appoint me somebody that will help me[?]”

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In his first pro se assignment of error, Defendant contends the evidence was

insufficient to sustain his conviction because the State did not prove his presence at

the scene of the shooting or that, if he was present, he was not acting in self-defense.

“When issues are raised on appeal both as to the sufficiency of the evidence and as

to one or more trial errors, the reviewing court should first determine the sufficiency

of the evidence.” State v. Hearold, 603 So.2d 731, 734 (La.1992). Thus, we address

Defendant’s first pro se assignment of error before the others.

The standard of review in a sufficiency of the evidence claim is “whether,

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found proof beyond a reasonable doubt of each of the essential

elements of the crime charged.” State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d

108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007), citing Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville, 448 So.2d 676,

(La.1984). “In making such a determination, a reviewing court is not called upon to

decide whether it believes the witnesses or whether the conviction is contrary to the

weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

10

Manslaughter is a homicide that would be first or second degree murder, and

thus requires the specific intent to kill, but for “sudden passion or heat of blood

immediately caused by provocation sufficient to deprive an average person of his

self-control and cool reflection.” La.R.S. 14:31; State v. Smith, 07-468 (La.App. 3

Cir. 10/31/07), 969 So.2d 694, writ denied, 07-2484 (La. 5/16/08), 980 So.2d 707.

“Sudden passion” and “heat of blood” are not elements of manslaughter, but rather,

“they are mitigatory factors in the nature of a defense which exhibit a degree of

culpability less than that present when the homicide is committed in the absence of

these factors.” State v. Johnson, 06-623, p. 7 (La.App. 3 Cir. 11/2/06), 941 So.2d

696, 702, writ denied, 06-3024 (La. 9/14/07), 963 So.2d 995. It stands to reason that

attempted manslaughter is an attempted homicide with those mitigating factors.

La.R.S. 14:27. See, e.g. State v. Brumfield, 04-552 (La.App. 5 Cir. 10/26/04), 887

So.2d 554. Defendant was charged with and tried for attempted second degree

murder. The jury returned a verdict of “guilty of attempted manslaughter,” finding

evidence of provocation giving rise to the mitigatory factors of “sudden passion” or

“heat of blood.”

Defendant argues, however, that the evidence was insufficient to place him at

the scene of the shooting. The victim, Daniel Johnson, testified Defendant shot him,

hit him in the head with the rifle, and wrestled with him on the ground. Trista Carroll

corroborated that version of the events, but admitted she was under the influence of

drugs at the time. Defendant testified he was at John Lewis’ home in Hineston,

Louisiana, at the time of the shooting. Although the rifle involved was found in

Crystal Johnson’s possession, and Crystal told Deputy Laborde she had shot her

husband, Crystal also made a 911 call reporting shots being fired, as if someone other

11

than she had fired them. She also told the 911 operator she had not been outside. The

Lewises’ testimony was not clear about which day Defendant had been at John’s

home, and did not clearly place him in Hineston at the time of the shooting. Thus, the

jury could have reasonably found Crystal did not fire the shots and that Defendant

did.

Defendant on appeal also alleges the State failed to prove that, if he was

present at the shooting, he was not acting in self-defense. The only “weapon” found

at the scene was a “silver metal folding knife that [Detective Oakes] found nineteen

feet from the front porch in front of the residence at Dovie Laird Road.” The knife

was not tested for fingerprints. Daniel Johnson testified he did not bring a weapon

to the door of Defendant’s home. No further evidence or testimony was admitted

concerning the knife or any other weapon. Defendant’s argument is without merit.

ASSIGNMENT OF ERROR (by Counsel)

Defendant alleges the trial court erred in refusing to allow him to waive his

right to counsel and represent himself in his case. Defendant has a right to counsel,

and to have counsel appointed if he cannot afford one, through the federal and state

constitutions. U.S. Const.Amend. VI, La.Const. art. 1, § 13. However, his choice

“must be knowingly and intelligently made and the assertion of the right to self-

representation must be clear and unequivocal.” State v. Francis, 07-373, p. 3

(La.App. 3 Cir. 10/3/07), 966 So.2d 1096, 1099.

The Francis court, citing other cases from this circuit, the Louisiana Supreme

Court, and the United States Supreme Court, discussed the standard for determining

whether a defendant has validly waived his right to counsel:

Before a defendant may waive his right to counsel,
the trial court must determine whether the defendant's

12

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

The Third Circuit Court of Appeal has repeatedly
required the trial court meet the following requirements in
determining whether a defendant has validly waived his
right to counsel: first, determine a defendant's literacy,
competency, understanding and volition, i.e. was
defendant's waiver of counsel made voluntarily and
intelligently; and second, warn the defendant of the
dangers and disadvantages of self-representation, so that
the record establishes that the defendant knew what he was
doing. [State v.] Mitchell, 580 So.2d 1006 [ (La.App. 3
Cir.1991), writ denied, 613 So.2d 969 (La.1993) ]; [State
v.] Smith, 479 So.2d 1062 [ (La.App. 3 Cir.1985) ]; State
v. Adams, 526 So.2d 867 (La.App. 3 Cir.1988); State v.
Sepulvado, 549 So.2d 928 (La.App. 3 Cir.1989); and State
v. Bourgeois, 541 So.2d 926 (La.App. 3 Cir.1989), writ
denied, 572 So.2d 85 (La.1991).

State v. Hayes, 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683,
685-86. See also State v. Johnson, 06-937 (La.App. 3 Cir. 12/6/06), 944
So.2d 864, and State v. Whatley, 03-655 (La.App. 3 Cir. 11/5/03), 858
So.2d 751.

Id.

At Defendant’s first appearance before the trial court, he said he was indigent

and asked the court to appoint a lawyer to represent him. Defendant made numerous

pro se filings (apparently including a motion for self-representation), criticized the

13

performance of his attorneys and “fired” his first attorney, but never specifically

objected to having court-appointed counsel.

Indeed, Defendant’s “Motion to Reconsideration the Denial of Previous

Motions” requested “that he be allowed someone to fill-in because he is (not) able to

read nor write.” Defendant’s pro se “Motion to Appear as Co-Counsel Pro Se”

acknowledged he was represented by the Indigent Defender Board and asked the

court “to grant him permission to appear pro se as co-counsel with the Indigent

Defenders Office.”

Defendant did not make a clear and unequivocal waiver of his right to counsel

at the hearing of his motion for self-representation. He told the trial court that he

needed someone to represent him because he could not read or write. Likewise, at the

hearing of Mr. Demourelle’s Motion to Withdraw, Defendant was not clear and

unequivocal when discussing the issue of self-representation. When the trial court

appointed Mr. Guidry, this exchange occurred:

[Defendant]: I don’t need an attorney, Your Honor. I will represent
myself in this case.

The Court: No, I have already ruled that you can’t represent yourself.

[Defendant]: Okay. Well, I want to represent myself. I want an attorney
to help me. I don’t need somebody that don’t want to help me. I have
got a serious charge . . . and I would like to represent myself because I
can’t find an attorney—you ain’t appointed me an attorney yet that
would help me in my matter. So, ma’am, I would just be better by
myself. I would be better by myself. I want to go to trial as soon as
possible and represent myself. I have that right.

....

The Court: I have already ruled that you cannot represent yourself. So,
I am appointing Mr. Guidry to represent you in this matter. And this is
Mr. Guidry.

14

[Defendant]: Okay. If he represents me fully, yes, ma’am. But, if he
don’t I’m gonna go to trial with myself cause I— . . . .

This situation is similar to that in State v. Hypolite, 04-1658 (La.App. 3 Cir.

6/1/05), 903 So.2d 1275, writ denied, 06-618 (La. 9/22/06), 937 So.2d 381. This

court noted the defendant’s attempt to obtain new counsel was not an unequivocal

request to represent himself; it was merely a request for substitute counsel because

the defendant was unhappy with his court-appointed attorney.

Here, Defendant’s testimony, filings, and actions indicate he in fact wants

court-appointed counsel, but wants to be able to discharge his counsel and obtain new

representation when his attorney, in his estimation, is not properly defending him.

Defendant is not entitled to counsel of his choice; rather, he “only has the right under

the federal constitution to effective representation.” State v. Reeves, 06-2419, p. 37

(La. 5/5/09), 11 So.3d 1031, 1056, cert. denied, __ U.S. __, __ S.Ct. __ (2009).

Defendant has set forth no grounds to show ineffective representation, and he will

have the opportunity to seek post-conviction relief on the ground of ineffective

representation if he so chooses. La.Code Crim.P. art. 930.3. Accordingly, we find

the trial court did not err in refusing to allow Defendant to waive his right to counsel

and represent himself at trial.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues the trial court erroneously denied his motion to recuse the

trial judge.2 He claims she once represented him in a prior proceeding before she

became a district judge. He allegedly told her she was very beautiful and made “an

explicit sexual gesture” toward her. The trial judge supposedly told her husband

2
Although the record does not contain Defendant’s motion to recuse, the trial judge’s Order
of July 27, 2007 references “the pro se motion sent to this court on July 25, 2007, for recusal of [the
trial judge]; for consideration of previously filed pro se motions; and for self-representation.”

15

about the incident, and he confronted Defendant’s brother. Defendant offers no

support of this allegation. He alleges the trial judge’s prejudice against him (because

of the alleged incident) led to her allowing Daniel to testify he was not served with

the restraining order prior to the shooting, when she had presided over the hearing

and issued the restraining order.

The trial judge did not have a hearing on the motion, but filed an order stating:

IT IS FURTHER ORDERED that the motion to recuse [the trial judge]
on the grounds that the defendant made “sexual passes” at her while she
was his appointed counsel is hereby denied in that a check of the records
of the 33rd Judicial Court shows that [the trial judge] has never been
appointed to represent the defendant. . . .

While Defendant offered no support for his allegations, the trial judge performed a

records check and offered the lack of her appointment as Defendant’s prior counsel

in support of her order. Thus, the trial judge properly denied the motion to recuse and

this assignment of error is without merit.

DECREE

Defendant’s convictions are affirmed.

AFFIRMED.

16