State of Louisiana v. Richard W. Black

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 09-923

STATE OF LOUISIANA

VERSUS

RICHARD W. BLACK

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C 13,908
HONORABLE ERIC R. HARRINGTON, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Billy H. Ezell, Judges.

AFFIRMED IN PART; REVERSED IN PART.

Van H. Kyzar, District Attorney
Cloyd Benjamin, Jr., Assistant District Attorney
P.O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

G. Paul Marx
Louisiana Appellate Project
P.O. Box 82389
Lafayette, LA 70598
(337) 237-2537
COUNSEL FOR DEFENDANT-APPELLANT:
Richard W. Black

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

The facts of the instant offense stem from those in a previous appeal. In State

v. Black, an unpublished opinion bearing docker number 08-989 (La.App. 3 Cir.

3/4/09), Defendant, Richard W. Black, appealed his conviction for aggravated assault

upon a peace officer with a firearm. In the lower court, the Defendant filed a “Motion

for Post-Verdict Judgment of Acquittal and for New Trial” and a “Supplemental

Motion for New Trial,” attaching the affidavit of Ruth Ann Brimzy, and asked that

she be examined at the hearing on the Defendant’s post-trial motion. The affidavit

indicated that Ms. Brimzy was with the victim, Wildlife Agent McAlpin, who

reported that he and another game warden lied about the Defendant pointing a gun

at them--the fact which formed the basis for his conviction. It is this affidavit which

forms the basis for the instant convictions.

In the instant case, the State alleged in the bill of information that Defendant

falsified the statements in the affidavit and then filed the affidavit in the record of the

proceeding, along with his “Motion for Post Verdict Judgment of Acquittal and for

New Trial,” in an effort to manipulate the judicial process. At sentencing, the trial

court confirmed that the affidavit was prepared by the Defendant with false

statements, signed by Ms. Brimzy, and then presented to the court. The trial court

stated:

The statement falsely impugned the integrity and the morality of uh,
Wildlife Agent, David McAlpin, who was the victim of the aggravated
assault conviction. And all of this was done with the intent of
influencing the Court’s decision uh ... both, I think, on the Motion for
New Trial, and (inaudible) that was denied ultimately on sentencing Mr.
Black on that aggravated assault charge.

On March 4, 2008, Defendant was charged by bill of information with filing false

public records, a violation of La.R.S. 14:133(A) and 14:24, and with perjury, a

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violation of La.R.S. 14:123 and 14:24. A motion for the appointment of a sanity

commission was filed by Defendant. After a hearing, the motion was denied.

Defendant pled guilty to the charges in exchange for the State’s agreement not

to charge him as a habitual offender and that the sentences would run concurrently

with each other. Defendant was subsequently sentenced to serve five years at hard

labor for each conviction, to be served concurrently with each other, but

consecutively to his prior sentence in an unrelated docket number. Defendant did not

file a motion to reconsider his sentences.

Defendant is now before this court on appeal, asserting that his convictions

violate double jeopardy and that the trial court erred in denying his motion for a

sanity commission. After reviewing the record, we find Defendant’s conviction and

sentence for perjury should be affirmed; but his conviction and sentence for filing

false public records should be reversed.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, Defendant argues the double jeopardy clauses of

the federal and state constitutions protect against multiple punishments for the same

offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969). Because his

guilty plea for creating a false affidavit was taken under both perjury and filing a false

public record, Defendant maintains his convictions violate double jeopardy. As such,

Defendant argues his single act of filing a false affidavit cannot be the basis for two

felony charges.

In opposition to Defendant’s appeal, the State argues Defendant waived his

right to appeal his convictions and sentences when he voluntarily entered his guilty

plea, citing State v. Pickens, 98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writ

denied, 99-1577 (La. 11/5/99), 751 So.2d 232, writ denied, 01-2178 (La. 4/19/02),

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813 So.2d 1081. The State maintains Defendant read and signed a plea agreement

which contained both charges and which expressly waived an appeal of his

convictions and sentences.

As noted in State v. Crosby, 338 So.2d 584, 588 (La.1976), “[a] defendant

normally waives any non-jurisdictional error by his plea of guilty.” An unqualified

plea of guilty, however, does not preclude review of jurisdictional defects, those

which do not permit a defendant’s conviction of the offense charged. According to

Crosby, a conviction which represents double jeopardy, is an example of a

jurisdictional defect. As such, we will review this assignment of error to determine

if Defendant’s convictions constitute double jeopardy.

In State v. Barton, 02-163, pp. 17-18 (La.App. 5 Cir. 9/30/03), 857 So.2d 1189,

1201-02, writ denied, 03-3012 (La. 2/20/04), 866 So.2d 817, the court summarized

the two tests used by Louisiana courts in examining violations of double jeopardy as

follows:

The “distinct fact” test, commonly referred to as the Blockburger test,
is taken from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct.
180, 182, 76 L.Ed. 306 (1932) as follows:

The applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each
provision requires proof of an additional fact which the
other does not.

Accord, State v. Knowles, 392 So.2d 651, 654 (La.1980).

The second test is the “same evidence” test. In State v. Steele, 387
So.2d 1175, 1177 (La.1980), the Louisiana Supreme Court explained
that test as follows:

If the evidence required to support a finding of guilt of one
crime would also have supported conviction of the other,
the two are the same offense under a plea of double
jeopardy, and a defendant can be placed in jeopardy for
only one. The test depends on the evidence necessary for

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conviction, not all the evidence introduced at trial. . . .

The “same evidence” test is broader than Blockburger, “the
central idea being that one should not be punished (or put in jeopardy)
twice for the same course of conduct.” State v. Steele, 387 So.2d at
1177. Although the Louisiana Supreme Court has accepted both the
Blockburger test and the same evidence test, it has principally relied on
the “same evidence” test to evaluate double jeopardy claims. State v.
Miller, 571 So.2d 603, 606 (La.1990).

The offense of filing or maintaining false public records is defined in La.R.S.

14:133, which reads in pertinent part:

A. Filing false public records is the filing or depositing for record
in any public office or with any public official, or the maintaining as
required by law, regulation, or rule, with knowledge of its falsity, of any
of the following:

(1) Any forged document.

(2) Any wrongfully altered document.

(3) Any document containing a false statement or false
representation of a material fact.

Perjury is defined in La.R.S. 14:123, which reads in pertinent part:

A. Perjury is the intentional making of a false written or oral
statement in or for use in a judicial proceeding, any proceeding before
a board or official, wherein such board or official is authorized to take
testimony, or before any committee or subcommittee of either house or
any joint committee or subcommittee of both houses of the legislature.
In order to constitute perjury the false statement must be made under
sanction of an oath or an equivalent affirmation and must relate to matter
material to the issue or question in controversy.

B. It is a necessary element of the offense that the accused knew
the statement to be false, but an unqualified statement of that which one
does not know or definitely believe to be true is equivalent to a
statement of that which he knows to be false.

To avoid double jeopardy under Blockburger, each provision must require

proof of an additional fact which the other does not. In the instant case, perjury

requires that the false statement be made under oath and be related to a material issue

in the judicial proceeding. These elements are not required for filing false public

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records. As such, Defendant’s convictions would not constitute double jeopardy

using the Blockburger analysis.

Under the same evidence test, however, the evidence required to support a

finding of guilt of one crime must not also support conviction of the other. In the

instant case, the conception and subsequent utilization of Ms. Brimzy’s affidavit was

used to convict the Defendant of filing false public records and to convict him of

perjury. Although the elements of the offenses are not identical, the evidence needed

to convict Defendant of the offenses is the same. Thus, Defendant’s convictions

constitute double jeopardy using the same evidence test.

As noted by this court in State v. Pierce, 01-94, p. 29 (La.App. 3 Cir.

10/31/01), 799 So.2d 732, 750, writ denied, 01-3312 (La. 1/10/03), 834 So.2d 427,

“To remedy a violation of double jeopardy, this court must vacate the conviction and

sentence of the less severely punishable offense and affirm the conviction and

sentence of the more severely punishable offense. State v. Doughty, 379 So.2d 1088

(La.1980); State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990).” See also State

v. Cox, 07-774 (La.App. 3 Cir. 3/4/09), 4 So.3d 998, writ denied, 08-602 (La. 9/4/09),

17 So.3d 948. In the instant case, a conviction of perjury is the more severely

punishable offense, which carries a maximum hard labor sentence of five years or a

maximum fine of $10,000, or both. La.R.S. 14:123(C)(3). Filing of false public

records carries a maximum possible sentence of five years, with or without hard

labor, or a fine of not more than $5,000, or both. La.R.S. 14:133(C). Accordingly,

Defendant’s conviction and sentence for perjury is affirmed and his conviction and

sentence for filing of false public records is reversed .

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, Defendant argues the trial court erred in not

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ordering a sanity commission despite objective medical evidence that he suffered

from a neurological deficit and impaired memory. Further, Defendant contends the

trial court unfairly considered his criminal conduct as somehow showing that he had

no mental health problems.

On March 26, 2008, Defendant, while incarcerated in the Natchitoches Parish

Detention Center, was arraigned by video. Defendant waived arraignment and

entered a plea of not guilty to the charges. After the trial court advised him of his

right to a jury trial and the date set for trial, Defendant advised the trial court he had

no memory of what was going on and asked how he could get some kind of mental

or physical help.

That same day, counsel for Defendant filed a “Motion for Psychiatric

Examination,” stating he believed that Defendant suffered a mild stroke while

incarcerated on or about the second week of March, was held at LSU Medical Center

for two days, and then returned to prison. According to defense counsel, when he

spoke with Defendant on March 14, 2008, Defendant did not appear to have any

recollection of his pending charges or why he was incarcerated, and could not

intelligently communicate with defense counsel. A hearing on the motion was

ordered to be held on April 16, 2008.

At the hearing, a three-page discharge summary from LSU Medical Center,

dated March 13, 2008, was admitted into evidence. The discharge diagnoses were

lumbar radiculopathy and neuropathy. The report indicates Defendant was

transferred from another hospital to LSU Medical Center complaining of right-sided

numbness and weakness and a throbbing headache all over his head. Defendant also

complained of stabbing, substernal chest pain, that radiated to his back. Defendant

stated he was unable to remember why he was in the hospital and that he thought the

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year was 1998. The laboratory data from the transferring hospital was reported to be

within normal limits. His physical exam on admission reflects that he was disoriented

to time, only, was cooperative with good eye contact, but “clearly unreliable.”

Although Defendant’s neurological exam was normal, he reported decreased touch

and pain sensation on the right upper and lower extremities and was unable to walk

due to his weakness and lower back pain. The physician reported, again, that “the

patient was unreliable on examination.”

During the course of his hospitalization, Defendant was admitted to neurology.

An MRI of the brain and lumbar spine, a carotid doppler and echocardiogram were

all normal. After showing remarkable improvement, Defendant was discharged to be

followed in the neurosurgery outpatient clinic.

At the hearing, the trial court heard the testimony of Defendant’s sister, Aline

Slaughter. In its written ruling denying Defendant’s motion, the trial court referred

to Ms. Slaughter’s testimony about the Defendant’s mental status during his

hospitalization. According to Ms. Slaughter, when she went to visit Defendant with

his wife, Patricia Black, Defendant believed that Mrs. Black was his girlfriend, not

his wife. Also, the Defendant thought the year was 1998, and that his deceased father

was still alive. Following his discharge, she stated she visited him twice and believed

his mental status had not changed. According to Ms. Slaughter, Defendant continued

to believe his father was alive. Ms. Slaughter indicated, however, that Defendant

knew his wife and that he had the mental wherewithal to call Ms. Slaughter at home.

The trial court also considered the discharge summary regarding the

Defendant’s mental status, his negative test results, and his significant improvement

during his hospital stay. The trial court noted that no other evidence was introduced.

In reaching its ruling, the trial court referred to La.Code Crim.P. arts. 641 and

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643. Louisiana Code of Criminal Procedure Article 641 reads, “Mental incapacity

to 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.” Louisiana Code of Criminal Procedure Article 643 provides:

The court shall order a mental examination of the defendant when
it has reasonable ground to doubt the defendant’s mental capacity to
proceed. Prior to the ordering of any such mental examination, the court
shall appoint counsel to represent the defendant if he has not already
retained counsel.

The trial court also relied on this court’s ruling in State v. Normand, 04-840, pp. 3-4

(La.App. 3 Cir. 12/15/04), 896 So.2d 98, 100, writ denied, 05-231 (La. 5/6/05), 901

So.2d 1094, which explains:

The appointment of a sanity commission “is not a perfunctory
matter or a ministerial duty of the trial court nor is it guaranteed to every
accused in every case.” State v. Nix, 327 So.2d 301, 323 (La.1975);
State v. Sepulvado, 93-2692 (La.4/8/96), 672 So.2d 158. The burden of
proof lies with the defendant. The defendant must show “by a clear
preponderance of the evidence reasonable grounds for the trial judge to
believe he is mentally deficient.” State v. Cyriak, 96-661, p. 8 (La.App.
3 Cir. 11/6/96), 684 So.2d 42, 47. Moreover, “[t]he fact that the
defendant’s capacity to proceed is called into question does not, for that
reason alone, require the trial court to order a mental examination of the
defendant.” State v. Lott, 574 So.2d 417, 424 (La.App. 2 Cir.), writ
denied, 580 So.2d 666 (La.1991), affirmed after remand, 27,849
(La.App. 2 Cir. 4/3/96), 671 So.2d 1182. The trial court has great
discretion in ruling on a determination of competency, and its decision
will not be overturned on appeal absent an abuse of discretion. State v.
Comeaux, 514 So.2d 84 (La.1987); State v. Lowenfield, 495 So.2d 1245
(La.1985).

The trial court then concluded “[t]hat while there was some evidence of earlier mental

confusion on defendant’s part, defendant has not proven that as of the time of the

hearing, he lacked the mental capacity to proceed as defined in Article 641.”

On appeal, Defendant contends the trial court imposed the wrong burden on

him, testing his request for a Sanity Commission as if it required him to prove

incapacity. However, considering the limited evidence presented at the hearing, we

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find Defendant did not meet his burden of showing, by a clear preponderance of the

evidence, reasonable grounds for the trial court to believe he was mentally deficient

to proceed. Even if the trial court believed that Defendant suffered from some sort

of medical event in March of 2008, which rendered him incapable of proceeding,

there was no evidence that the Defendant suffered from any mental deficiency at the

time of the hearing. Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence for perjury is

affirmed. His conviction for filing false public records is reversed.

AFFIRMED IN PART; REVERSED IN PART.

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