State of Louisiana v. J. L.

NOT DESIGNATED FOR
PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1152

STATE OF LOUISIANA

VERSUS

J. L.

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 09-1019
HONORABLE LEO BOOTHE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

John Frederick Johnson
District Attorney, Seventh Judicial District Court
David Robert Opperman
Assistant District Attorney
501 Caddo Parish Courthouse
4001 Carter St., Suite 9
Vidalia, La 71373
(318) 336-5526
Counsel for Appellee:
State of Louisiana

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

J. L.
Louisiana State Penitentiary
Camp D - Raven 3L4
Angola, LA 70712

PICKETT, Judge.

FACTS

On April 29, 2009, victim H.L., the defendant=s daughter, was at Parkway

Baptist Church in Natchez, Mississippi, attending a youth class. 1 H.L.=s sister,

brother, and the defendant, all residents of nearby Concordia Parish, Louisiana,

were also on church grounds. At some point, church officials became aware that

the victim had run away. Church personnel then went looking for her, and they

found her walking in a nearby neighborhood. She was upset and insisted that she

would not go back.

Church workers convinced the victim to return to church. Once there, the

girl stated that her father was having sex with her. Church personnel contacted

police. At trial, the victim testified the defendant began engaging in anal sex with

her when she was approximately nine years old and had either anal or vaginal sex

with her more than one hundred times over the years, until April 2009, when she

reported him.

On August 24, 2009, a Concordia Parish grand jury indicted the defendant,

J.L., for one count of aggravated rape, a violation of La.R.S. 14:42, and one count

of aggravated incest, a violation of La.R.S. 14:78.1. The rape charge proceeded

under docket number 09-1019, while the incest charge proceeded under docket

number 09-2120.

On April 9, 2010, the defendant waived his right to a jury trial. The court

conducted a bench trial on April 12 and 13, and found the defendant guilty as

charged. The proceeding included both docket numbers. On April 28, the court

1
To protect the identity of the victim, we will use initials when needed, in accordance
with La.R.S. 46:1844(W).

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sentenced him to life imprisonment, without benefit of parole, probation, or

suspension of sentence for aggravated rape and twenty years for aggravated incest.

The defendant now appeals, assigning one error through counsel. His

motion to appeal included both docket numbers, but the record does not show that

the cases were ever consolidated. Therefore, the two convictions have separate

docket numbers on appeal and will result in two separate opinions. The defendant

has also filed a pro se brief asserting two assignments of error.

ERROR PATENT

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

this court for errors patent on the face of the record. After reviewing the record,

we find no errors patent.

ASSIGNMENT OF ERROR

In his sole assignment of error, filed in counsel‟s brief, the defendant argues

the trial court erred by refusing to address his pro se pretrial motions. He quotes

from the following colloquy, which occurred at a pretrial hearing on October 14,

2009:

MR. OPPERMAN [Prosecutor]:

Your Honor, Mr. [L.] had filed his own motions and your Honor has
set them for hearing. One is a motion for a bond reduction and a
motion for discovery. They=re pro se, he=s filed them since he=s had
counsel. I defer to the Court and to Mr. Lemke.

MR. LEMKE [Defense Counsel]:

I don=t know anything about the motions that - - Mr. [L.] just informed
me he didn=t know I had filed discovery motions so I think the
discovery motion is probably taken care of. On the bond reduction,
I=m going to review the discovery and then I=ll submit my own bond
reduction.

THE COURT:

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Mr. [L.], ordinarily this applies when the public defender represents
an individual but when it starts occurring in that context, I=ll tell them
if you continue to file pro se motions, I=m going to consider that as a
request and dismiss the public defender from your case. Of course,
this is not a public defender case right?

MR. LEMKE:

This is, your Honor.

THE COURT:

It is? Mr. [L.], we can=t have two different tracks running on these
motion schedules and that sort of thing. If you file anymore [sic] pro
se motions, I=m going take that as a motion on your behalf to dismiss
the public defender as your attorney and you=ll proceed pro se.

As the defendant observes, trial courts are required to address pro se motions

when doing so will not lead to confusion. State v. Melon, 95-2209 (La. 9/22/95),

660 So.2d 466. However, as the state points out, the defendant acknowledges that

such an error will not warrant reversal unless a defendant=s case was prejudiced by

it. State v. Pitree, 05-1513 (La.App. 3 Cir. 5/3/06), 930 So.2d 265, writ denied,

06-1897 (La. 3/23/07), 951 So.2d 1092. The state also cites a similar holding in

State v. Jones, 41,299 (La.App. 2 Cir. 11/9/06), 942 So.2d 1215, writ granted in

part on other grounds, 06-3025, 06-2905 (La. 8/31/07), 963 So.2d 381, 382.

The state disputes whether the court=s action was truly a Arefusal@ to rule,

noting that the court set the motions for hearing. In fact, the court expressed a

willingness to proceed with the pro se motions that were pending at that time. The

defendant withdrew those motions. However, the court threatened to divest the

defendant of counsel if he continued to file pro se motions. Therefore, the court‟s

reaction to the motions was improper under Melon. We note that neither the

defendant nor his attorney entered an objection to the court‟s ruling. However, the

defendant has failed to show how the court=s treatment of his pro se motions

prejudiced his case. He argues that his pro se motion for discovery sought formal
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discovery, but that his counsel accepted open file discovery and was thus caught in

a trap. According to the defendant, Acounsel did not get everything he thought he

was getting in the >casual= open file discovery.@ He argues that since discovery was

not formal, he was left without a remedy.

The defendant argues the alleged discovery problem led him to waive his

right to a jury trial on April 9, 2010. As the defendant observes, counsel claimed

in the motion that he had learned on April 5 that the state intended to use

videotaped statements at trial that it had previously stated it would not use. He

argues the discovery-related prejudice recurred during trial, as he Awas repeatedly

faced with@ evidence that had not been provided in open file discovery. During the

testimony of Rosalyn Johnson, the State introduced notations of another nurse,

over counsel=s objection, which was apparently hearsay-based. At the close of

Johnson=s testimony, counsel proffered an objection, alleging that he had not been

provided with the statement in discovery.

During the direct examination of forensic interviewer Shantelle Cooper, the

state sought to introduce a videotaped statement by A.L., H.L.=s sister. Defense

counsel immediately objected, stating that he did not have prior knowledge of the

statement, despite open file discovery. The state argued that the defendant was not

genuinely surprised, due to another reference in the discovery materials to A.L.=s

statement. Ultimately, the court allowed the statement to be admitted.

On appeal, the defendant claims that any potential remedies were hobbled by

the fact that discovery in the present case was not formal. However, he does not

cite any ruling by the trial court that precluded relief due to the use of open file

discovery.

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Counsel=s decision to accept open file discovery did not necessarily

preclude remedies for discovery violations. See, e.g., State v. Taylor, 597 So.2d

123 (La.App. 5 Cir. 1992), and State v. Garrick, 03-137 (La. 4/14/04) 870 So.2d

990. (“We have no quarrel with the court of appeal‟s premise that „when litigants

[choose] to modify the discovery process and enter into an open file discovery

agreement, it must be fully complied with in good faith.‟ Garrick at 993 (State v.

Garrick, 02-712, p. 14 (La.App. 3 Cir. 12/11/02), 832 So.2d 1110,

1118.)”)(alteration in original).

Also, during the hearing on the defendant=s jury waiver, he made no mention

of being surprised by the state‟s decision to use the videotape. However, it is more

significant that the defendant does not now challenge any of the trial court=s

individual rulings on his discovery-based objections at trial. Further, he does not

cite any instance in which the court overruled one of his objections because he had

relied on open file discovery. The defendant makes a very specific argument on

appeal. He complains the trial court should have considered his pro se motions,

but he recognizes that he must demonstrate prejudice to obtain relief. The

prejudice he alleges is that counsel accepted open file discovery, leaving him with

no relief.

Since the defendant has not demonstrated that he was bereft of remedies,

the core argument of his assignment fails. He has failed to show that his case was

prejudiced by the fact that his pro se motions were not reviewed by the trial court.

For the reasons discussed, this assignment of error lacks merit.

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PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant argues his ability to file a pro

se brief has been hindered. Before addressing the specifics of this claim, we

observe that although the brief has been accepted it is certainly untimely.

According to this court‟s records, the defendant was notified on May 24,

2011, that the record was being sent to him and that his briefing deadline was June

20. After the state of emergency (due to flooding) was lifted and the defendant

returned to Angola, this court informed him that the record was again being sent to

him and the new briefing deadline was July 15. On August 17, this court received

a letter from the defendant expressing some confusion regarding appellate

procedure and requesting an extension of the briefing date. An extension to

August 30 was granted. As noted earlier, his brief was postmarked two days past

that date.

Regarding substance, the specifics of his claim are unclear. In the first

paragraph of his argument, he implies he was not allowed to retain a copy of his

records. His second paragraph implies the Legal Programs Department should

have taken a more active role in his case. In a later portion of his argument, the

defendant acknowledges he was “loaned” a copy of the transcript by the Legal

Programs Department but states he did not receive “„reasonable access‟ to anything

else.” He again acknowledges that this court provided him with the record but

claims the Legal Programs Department at Angola did not provide him with

reasonable access to said record.

To the extent the defendant appears to complain that he did not have the

assistance of an inmate counsel substitute, the argument lacks merit. State v. Hicks,

08-511 (La.App. 1 Cir. 6/26/08), 992 So.2d 565. As already mentioned, the

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defendant‟s overall argument is unclear. He seems to claim that he was not allowed

full access to the record, but he acknowledges the Legal Programs Department at

Angola loaned him a transcript, although he doesn‟t specify which transcript he

received. Thus, it is not clear how his access to his record was restricted, nor is it

clear how his efforts to compose a brief were hindered.

The defendant complains the closing arguments and rebuttal were not

transcribed. However, the arguments do not constitute trial evidence, and the

defendant is unable to even suggest any portion of said arguments that might

contain reversible error. He notes that counsel did not designate that portion of the

record for transcription.

Like the defendant in Hicks, the defendant had the benefit of an appellate

counsel who filed a brief on his behalf, and if his conviction is affirmed, the post-

conviction relief process will be available for him to raise constitutional issues, if

any are pertinent.

For the reasons discussed, this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant argues his trial counsel was

ineffective for failing to impeach state witnesses and for failing to investigate the

allegations at issue. The defendant claims that he informed counsel that the victim

had multiple boyfriends and “male associates” at the time of the offense. He also

suggests the victim‟s mother may have used the rape allegation as a tool “to rid

[him] from the children‟s lives.” He implies the state‟s case relied heavily on the

victim‟s testimony and thus there was a need to prepare to impeach her.

Such a claim raises possible issues of trial strategy and matters that do not

appear in a trial record. Any ineffective assistance of counsel claim should

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relegated to the post-conviction process, in which both parties can develop the

record further. See, e.g., 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.

CONCLUSION

The defendant has failed to show reversible error in the trial court‟s handling

of his pro se motions at trial.

The defendant has failed to demonstrate that his right to file a pro se brief

has been hindered. His ineffective assistance of counsel claim is relegated to the

post-conviction relief process. The conviction is affirmed.

AFFIRMED.

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