State of Louisiana v. Fernand Paul Autery

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-0886

STATE OF LOUISIANA

VERSUS

FERNAND PAUL AUTERY

************

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 03-1561
HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE

************

JIMMIE C. PETERS
JUDGE

************

Court composed of John D. Saunders, Oswald A. Decuir, and Jimmie C. Peters,
Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

J. Phil Haney
District Attorney
Walter J. Senette, Jr.
Assistant District Attorney
St. Mary Parish Courthouse
Franklin, LA 70538
(337) 828-4100
COUNSEL FOR APPELLEE:
State of Louisiana

Mary Constance Hanes
Louisiana Appellate Project
P.O. Box 4015
New Orleans, LA 70178-4015

(504) 866-6652
COUNSEL FOR DEFENDANT/APPELLANT:
Fernand Paul Autery

PETERS, J.

The defendant, Fernand Paul Autery, appeals his conviction of the offense of

aggravated rape, a violation of La.R.S. 14:42. For the following reasons, we affirm

his conviction but remand the matter to the trial court with instructions to properly

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

DISCUSSION OF THE RECORD

The sole issue before us on appeal involves the defendant’s attempt to represent

himself at his trial. He asserts that his attempt at self-representation was interfered

with to the point that he was unable to control his own defense.

The trial court record establishes that on October 10, 2003, the State of

Louisiana (state) charged the defendant by grand jury indictment with aggravated

rape of a six-year-old child, and that after a four-day trial on the merits, which began

on February 13, 2006, a jury found him guilty as charged.1 The trial court then

sentenced the defendant to serve life imprisonment at hard labor without the benefit

of probation, parole, or suspension of sentence.

The origin of the representation issue can be traced back to a May 9, 2005 pro

se motion filed by the defendant wherein he sought to represent himself. The trial

court granted his motion on June 15, 2005, but appointed trial counsel to assist him.

In the appeal before us, the defendant’s appellate counsel has asserted one assignment

of error:

Mr. Autery’s right to represent himself was interfered with, and
undermined, by the trial court and his appointed “co-counsel”; the
hybrid representation arrangement made it difficult for Mr. Autery to
control his defense.

1
The procedural history in this case is extensive, and this opinion only relates the filings and
hearings pertinent to the issue now before the court.

Additionally, the defendant has asserted one pro se assignment of error that basically

raises the same issue:

Appellant Autery claims he was denied his U.S. Constitutional Sixth and
Fourteenth Amendment right[s] to self-representation in that he was
granted the right to represent himself, but standby counsel, the state, and
the court, prevented him from presenting his case in his own way.

OPINION

The right of a defendant to represent himself in a criminal proceeding is well

settled in the law. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975).

The limitations to that right are only that “he knowingly and intelligently foregoes his

right to counsel and that he is able and willing to abide by rules of procedure and

courtroom protocol.” McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948

(1984). Additionally, while this right of self-representation includes his right to

“control the organization and content of his own defense, to make motions, to argue

points of law, to participate in voir dire, to question witnesses, and to address the

court and the jury at appropriate points in the trial,” it does not preclude the

appointment of co-counsel to assist him when requested. Id. at 174. In fact, there

exists no absolute bar to co-counsel becoming involved in the defense without being

requested to by the defendant. Id. at 176. ‘[T]he primary focus must be on whether

the defendant had a fair chance to present his case in his own way.” Id. at 177.

Still, co-counsel’s unsolicited involvement is not without its limitations.

First, the pro se defendant is entitled to preserve actual control
over the case he chooses to present to the jury. This is the core of the
Faretta right. If standby counsel’s participation over the defendant’s
objection effectively allows counsel to make or substantially interfere
with any significant tactical decisions, or to control the questioning of
witnesses, or to speak instead of the defendant on any matter of
importance, the Faretta right is eroded.

2

Second, participation by standby counsel without the defendant’s
consent should not be allowed to destroy the jury’s perception that the
defendant is representing himself. The defendant’s appearance in the
status of one conducting his own defense is important in a criminal trial,
since the right to appear pro se exists to affirm the accused’s individual
dignity and autonomy.

Id. at 178 (footnote omitted).

The United States Supreme Court in McKaskle stated the following in summary:

Accordingly, we make explicit today what is already implicit in
Faretta: A defendant’s Sixth Amendment rights are not violated when
a trial judge appoints standby counsel—even over the defendant’s
objection—to relieve the judge of the need to explain and enforce basic
rules of courtroom protocol or to assist the defendant in overcoming
routine obstacles that stand in the way of the defendant’s achievement
of his own clearly indicated goals. Participation by counsel to steer a
defendant through the basic procedures of trial is permissible even in the
unlikely event that it somewhat undermines the pro se defendant’s
appearance of control over his own defense.

Id. at 184.

During the June 15, 2005 hearing, the trial court questioned the defendant

extensively concerning his request to represent himself, and even pointed out to the

defendant the expertise of Craig Colwart, the attorney representative of the local

indigent defender’s office.2 The end result of this exchange was that the defendant

still insisted that he be allowed to represent himself, but requested that Mr. Colwart

be appointed to assist him.3 The trial court responded to the defendant’s motion in

the following manner:

THE COURT: All right. Mr. Autery, you want to represent yourself.
I’ve questioned you about your education, about your previous
experiences in court. You tell me that you’ve represented yourself in
court before, I guess you were satisfied with your own representation;
were you?

2
Mr. Colwart was physically present in court during the hearing.
3
The defendant’s specific response to the trial court’s question concerning whether he wished
to have the indigent defender attorney represent him was that “I would like to represent myself with
him assisting me, if possible.”

3

THE DEFENDANT: Yes, sir.

THE COURT: You have two years of college. You’ve been a business man
is what you’re telling me.

THE DEFENDANT: Yes, sir.

THE COURT: And you feel that you are competent to handle your
own case; is that right?

THE DEFENDANT: Yes, sir.

THE COURT: And you pretty much insist that you do do that, don’t you?

THE DEFENDANT: If it is possible I would like Mr. Colwart to be
there in case something comes up unexpected.

THE COURT: All right. I’m going to grant your Motion to represent
yourself, Mr. Autery, and I’m going to appoint Mr. Colwart with the I.D.
Board to be with you during the trial and to --

At this point, Mr. Colwart interrupted the trial court and completed the sentence to

suggest that he would “[a]ssist as co-counsel.” The trial court then completed its

statement as follows:

THE COURT: --assist you as you may require and for you to confer
with Mr. Colwart as you may desire to do so during the trial. Anything
else?

The interference complained of by the defendant on appeal relates to the

evidence provided at trial that is attributable to Dr. Gina Bagneris, a physician who

treated the victim at the Iberia Medical Center Emergency Room on the night the

victim told her mother that the defendant had sexually abused her. The doctor did not

testify, but her emergency room report was introduced into evidence.

The defendant’s trial had been set and reset on a number of occasions before

the February 2006 trial. Before each prior setting, the defendant tried, unsuccessfully,

to subpoena Dr. Bagneris to appear as a witness. This question of his unsuccessful

attempts to subpoena the doctor was addressed at a January 17, 2006 hearing on

4

motions filed by the defendant. At that hearing, Mr. Colwart advised the trial court

of his difficulty in obtaining the doctor’s presence at the previous settings, and

complained that he had yet to see a return on the prior subpoenas to see if the doctor

even got service. At the instruction of the trial court, the deputy clerk located the

service return for October 12, 2005, and reported that the doctor was no longer at the

Iberia Medical Center. The deputy clerk noted that the return suggested that the

subpoena should be sent to a specific address in Carencro, Louisiana. In fact,

according to the deputy clerk, the return contained a telephone number for the doctor.

All of this information was supplied to both Mr. Colwart and the defendant in open

court.

Dr. Bagneris’ testimony was also the subject of part of the proceedings at a

January 30, 2006 hearing. At that hearing, Mr. Colwart informed the trial court that

when he and the defendant attempted to contact Dr. Bagneris at the Carencro address,

they discovered she had moved. According to Mr. Colwart, the state had informed

him that Dr. Bagneris had initially moved to New Orleans, Louisiana, but had since

moved from that city. His attempts to locate her through the Louisiana Medical

Board had been unsuccessful up to that point, but were part of an ongoing effort.

Mr. Colwart then informed the trial court that he and the state were trying to

reach a judge-suggested compromise wherein they would stipulate that Dr. Bagneris’

report would be admitted in lieu of her testimony. At that point, the defendant

interrupted and asserted to the trial court that he considered Dr. Bagneris’ report to

be critical to his case and, since she was unavailable, he wanted it introduced. A

discussion followed concerning the significance of the report and the legal

5

requirements that had to be met before it could be introduced. The end result of the

exchange was that the trial court left the issue open pending briefing by Mr. Colwart.

On February 6, 2006, the defendant filed a pro se motion, entitled Motion in

Limine, seeking to have the trial court order that Dr. Bagneris’ medical records would

be admissible at trial. At a pretrial hearing held in open court on February 8, 2006,

the defendant personally said that because he had been unable to subpeona Dr.

Bagneris, he felt her written report was “very important” and pointed out to the trial

court that the doctor’s statement was “definitely something the jury should be able to

see.” After the state objected to the admissibility of the report, the trial court delayed

ruling on its admissibility until the state and Mr. Colwart had an opportunity to

address the issue in memorandums. The defendant submitted a list of cases to be

attached to Mr. Colwart’s memorandum.

Immediately before trial began on February 13, 2006, the trial court ruled that

the entire report would be admissible. When, on that day, the defendant again raised

the subject of the doctor testifying, Mr. Colwart noted the following concerning his

efforts to have the doctor appear:

I had spoken to the doctor and she indicated to me that she was leaving
out of town, she did not want to talk to me and she would not give me
her new address and that she did not intend to come and testify as a
witness in this trial.

Additionally, counsel for the state informed the trial court that when she spoke to Dr.

Bagneris in April of 2005, the doctor was “very reluctant” to divulge her New

Orleans address and was “hesitant” about testifying. When the state’s counsel later

contacted the doctor, she was informed that the doctor was moving to Florida and did

not wish to testify.

6

These responses did not satisfy the defendant, who then informed the trial court

that on January 31, 2006, he had sent a certified letter to the doctor’s Carencro

address and the post office provided him with a return receipt reflecting that the

doctor received the letter. That being the case, he continued to question why the

subpoenas had not been served at this address,4 and asked to see the returns. The

sheriff’s return reflects that the officer attempting to serve the doctor was unable to

locate her at the Carencro address.5 The trial court then asked the defendant if he

wanted the medical records or Dr. Bagneris’ testimony. In response, the defendant

stated that “[i]f she’s available, I’d rather have her.” When Mr. Colwart noted that

the doctor was not available, the defendant did not indicate that he now objected to

the introduction of the medical records in lieu of her testimony. The trial on the

merits then began with the understanding that Dr. Bagneris’ report would be

introduced in lieu of her testimony.

During the presentation of its case, the state offered Dr. Bagneris’ report into

evidence. It was marked as S-6 and D-1. The defendant asserts that when he

attempted to object to the introduction of the report, Mr. Colwart pulled him down,

told him not to object, and stated that he was making a fool of himself. When this

issue was addressed at an August 31, 2010 hearing, Mr. Colwart testified that he did

not recall physically pulling the defendant down, but did agree that he told the

defendant not to object because to do so would be to make a fool of himself. In fact,

the defendant did not object to the state’s introduction of the report.

4
Mr. Colwart informed that trial court that he had also issued a subpoena to the Carencro
address.
5
The return is dated February 14, 2006, and also contains the notation that the subpoena was
“[r]eceived too late for service.”

7

The defendant’s appellate counsel suggests that the prior efforts to subpoena

the doctor and Mr. Colwart’s advice during the trial not to object to the introduction

of the report are evidence of a hybrid representation arrangement which made it

difficult for the defendant to control his own defense. Similarly, the defendant argues

that Mr. Colwart’s interference prevented him from presenting his case in his own

way.

With regard to the pretrial subpoena problems, the defendant’s appellate

counsel states in his brief to this court that Dr. Bagneris’ testimony was essential to

the defense and both Mr. Colwart and the trial court “repeatedly interfered with, and

undermined, his handling of his defense, particularly where it came to securing his

witness.” (Emphasis added). Additionally, appellate counsel asserts in brief that

there was a continuing disagreement between the defendant and Mr. Colwart

concerning whether to call Dr. Bagneris as a witness or simply introduce her report

into evidence. In his pro se brief, the defendant asserts that his intent was always to

have Dr. Bagneris testify at trial with the goal of creating reasonable doubt by

showing the victim’s inconsistent testimony.6 However, the defendant argues that

this was not Mr. Colwart’s plan. Instead, according to the defendant, Mr. Colwart

made the strategic choice to introduce Dr. Bagneris’ report into evidence when he

6
In his pro se brief, the defendant avers that had Dr. Bagneris testified at trial, her testimony
would have been as follows:

That according to the victim, there was no mention of touching or penetration to the
genitals, and no mention of any oral sex, only touching of the buttocks with the toy
egg. She would testify that the child’s statement was somewhat inconsistent on when
the event took place. And she was surprised at the victim’s comfort level and felt she
had to mention this in her report that the child’s behavior was somewhat
inappropriate for someone who had been assaulted.
(Footnote omitted.)

8

failed to use all procedures available to him to get Dr. Bagneris to testify at trial,

especially after Mr. Colwart acknowledged that he had been in contact with her.

We find no merit in these arguments. The record contains no evidence that

anyone – Mr. Colwart, the state, or the trial court – took any steps to prevent the

defendant from having every opportunity to subpoena Dr. Bagneris. Somehow both

the defendant and appellate counsel equate lack of success in obtaining service of a

subpoena with a conspiracy among officers of the court.

Nor do we find that Mr. Colwart’s advice to the defendant concerning the

state’s introduction of Dr. Bagneris’ report rises to the level of interference. The

defendant asserts that he attempted to object to the state’s offering based on his

possession of the certified mail receipt signed by Dr. Bagneris. Simply stated, this

issue had already been resolved immediately before trial began when the defendant

responded to the trial court’s questions. The defendant stated that “[i]f [Dr. Bagneris

were] available, I’d rather have her.” Dr. Bagneris was not available, despite the

efforts of both sides to obtain service on her, and the trial court granted the defendant

the same relief he had requested in his February 6, 2006 pro se Motion in Limine.

The defendant’s complaint concerning the introduction of the report seems to

be that he wanted to introduce it as part of his defense rather than have the state

introduce it. Therefore, the defendant reasons, he was deprived of presenting his case

in his own way. As pointed out in McKaskle, 465 U.S. at 184, the defendant’s co-

counsel is present partially “to relieve the judge of the need to explain and enforce

basic rules of courtroom protocol” and “[p]articipation by counsel to steer a defendant

through the basic procedures of trial is permissible even in the unlikely event that it

9

somewhat undermines the pro se defendant’s appearance of control over his own

defense.”

As explained by Mr. Colwart in his testimony on this issue:

[W]hat I meant by that was that all along it was part of our strategy to
have this - - to subpoena this doctor who had - - was the doctor who did
the initial examination of the alleged victim in this case and have her
testify as part of our trial strategy and we were having a hard time
getting her subpoenaed because she had moved. The returns on the
subpoenas were that she had moved. And then, I think shortly before
the trial started, we - - we got a - - information that she had moved to
Florida, but that we were going to - - and I told you, we were going to
have a hard time subpoenaing her from Florida. And as a result of that,
you filed a Motion to - - In Limine, I believe you entitled it, to be
allowed to introduce her - - her report into evidence in lieu of her
testimony, which is what happened in this trial. And when the State
went to introduce the report, which you were trying to get in, in lieu of
the doctor’s testimony, and - - and because she just wasn’t coming, we
couldn’t either get service or she just refused to come, you wanted to
object to that. And I just found that somewhat puzzling and tried to
explain that to you; you’re the one that wanted to introduce it and the
State’s conceding that and introducing it, now you don’t want it in, and
I believe it had already been mentioned to the jury about the report, in
lieu of her testimony, and now you’re objecting in front of the jury to
keep something out that you wanted - - you fought tooth and nail to get
in. And - - And the testimony - - And the report was basically what she
was going to testify to and - - and it had a lot of information in there that
supported the arguments that we were making. So that’s why I said - -
I don’t remember exactly what I told you, but I do remember saying
words to the effect that, “You’re making a fool of yourself if you want
to keep this report out.” And - - And that was my thought process on
that.

This constitutes nothing more than an attempt by Mr. Colwart to explain the basic

rules of courtroom protocol to the defendant. Additionally, Mr. Colwart did not

prevent the defendant from objecting to the admission of the report. Instead, he

simply gave a correct explanation of the effect of the defendant’s proposed objection.

We find this argument has no merit.

Finally, pursuant to La.Code Crim.P. art. 920, we have reviewed the record of

these proceedings for errors patent on the face of the record. In doing so, we find one

10

such error that requires addressing. In sentencing the defendant, the trial court stated

that the defendant had two years and five days from being sentenced in which to seek

post-conviction relief.7 The appropriate time is two years from the date the

conviction becomes final. La.Code Crim.P. art. 930.8. We must remand the matter

to the trial court with instructions to properly notify the defendant of the appropriate

prescription period.

DISPOSITION

For these reasons, we affirm the defendant’s conviction in all respects. We

remand the matter to the trial court with instructions to the trial court to inform the

defendant, pursuant to La.Code Crim.P. art. 930.8, of the corrective prescriptive

period for filing for post-conviction relief by sending written notice to the defendant

within ten days of the rendition of this opinion and to file written proof in the record

that the defendant received the notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-
16.3, Uniform Rules, Courts of Appeal.

7
The court minutes incorrectly indicate the defendant was correctly advised of the post-
conviction relief time limitations. The minutes state the defendant was told he has two years from
the date of the finality of judgment to file for post-conviction relief.

11