State of Louisiana v. Alex P. Papillion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-1317

STATE OF LOUISIANA

VERSUS

ALEX P. PAPILLION

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 3987-07, Section G
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Mark O. Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, Louisiana 71457-2057
(318) 572-5693
COUNSEL FOR DEFENDANT/APPELLANT:
Alex P. Papillion

Alex P. Papillion
D.O.C. #182589-CBB
Louisiana State Penitentiary
Angola, Louisiana 70712
IN PROPER PERSON

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

GENOVESE, Judge.

In this criminal case, Defendant, Alex P. Papillion, after having been convicted

by a jury of theft of over $500.00, attempted disarming of a peace officer, and the

responsive verdict of simple battery, was billed as a habitual offender, adjudicated as

a third felony habitual offender, and was sentenced accordingly. He appeals his

convictions, habitual offender adjudication, and sentences. For the reasons that

follow, we affirm Defendant’s convictions, habitual offender adjudication, and

sentences.

FACTS AND PROCEDURAL HISTORY

On the evening of December 8, 2006, between 7:45 and 8:00 p.m., Defendant

attempted to steal a car parked at a corner gas station. He then fled on foot to a

neighboring apartment complex where he successfully stole a vehicle.

Following a high-speed chase with the police, Defendant crashed the vehicle

into a tree. He exited the vehicle, and a foot chase ensued through a nearby apartment

complex. The pursuit ended at the top of a flight of stairs where Defendant indicated

to a pursuing female officer that he surrendered. As the officer was about to handcuff

Defendant, he went for her gun. After the officer broke Defendant’s grip from her

gun, he pushed her, causing her to fall backwards down the stairs. Defendant

descended the stairs and continued to struggle with the officer in an attempt to get her

gun. When a second officer arrived on the scene, Defendant was apprehended with

the assistance of a canine.

On February 9, 2007, Defendant was charged by bill of information as follows:

Counts 1 and 2 – theft of over $500.00, violations of La.R.S. 14:67; Count 3 –

attempted disarming of a police officer,1 a violation of La.R.S. 14:34.6 and 14:27; and

1
Though the bill of information reads “police officer,” the statute states “peace officer”;
therefore, all references to this statute throughout this opinion will refer to “peace officer.”

Count 4 – second degree battery, a violation of La.R.S. 14:34.1. On March 9, 2010,

Count 1 was nolle prosequied, and the matter proceeded to trial. On March 12, 2010,

Defendant was found guilty as charged on Counts 2 and 3 and also found guilty via

responsive verdict of simple battery on Count 4.

The State subsequently charged Defendant as a habitual offender on May 10,

2010. Following a hearing on June 28, 2010, the trial court found Defendant to be

a third felony habitual offender. As such, Defendant was sentenced to life

imprisonment at hard labor, without benefit of parole, probation, or suspension of

sentence, for attempting to disarm a peace officer, to fifteen years at hard labor for

theft over $500.00, and to six months in the parish jail for simple battery. The

sentences were ordered to run concurrently with each other. Defendant filed pro se

motions to reconsider his sentences, which were denied.

ASSIGNMENTS OF ERROR

Defendant is now before this court on appeal, asserting two assignments of

error through appellate counsel: 1) that his convictions for attempted disarming of

a peace officer and simple battery violated his constitutional protection against double

jeopardy; and 2) that the trial court erred in deferring its ruling on his pro se post-trial

motions until after his habitual offender adjudication and sentencing.

Defendant has also filed a pro se brief and a supplemental pro se brief setting

forth the following pro se assignments of error:

1. The trial court failed to comply with La.R.S. 5:529.1(D)(3), which
makes the habitual offender adjudication unconstitutional as it applies
to Defendant for sentencing enhancement.

2. The trial court erred when it allowed the introduction of unrelated
other crimes evidence through the testimony of Ms. Laticia Fontenot and
Ms. Shellie Fontenot, which prejudiced Defendant.

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3. The evidence was insufficient to find Defendant guilty of count one,
theft over $500.00; count two, attempting to disarm a peace officer; and
guilty of the responsive verdict of simple battery.

4. Defendant contends that the trial court erred when it did not secure
the attendance of his witness by subpoenas.

5. Defendant contends that a conflict between him and his court
appointed counsel before and during the trial constitutes a violation of
his rights guaranteed by the Sixth Amendment to the United States and
Louisiana Constitutions.

6. Trial counsel was ineffective by failing to object to the exclusion of
the responsive verdicts.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find that there

are no actionable errors patent.

PRO SE ASSIGNMENT OF ERROR NO. 3:

In this assignment of error, Defendant argues that the evidence was insufficient

to find him guilty of theft over $500.00, attempting to disarm a peace officer, and

simple battery. This assignment of error is addressed first in the event Defendant is

entitled to an acquittal. State v. Hearold, 603 So.2d 731 (La.1992).

When the entirety of the evidence, including inadmissible evidence
which was erroneously admitted, is insufficient to support the
conviction, the accused must be discharged as to that crime, and any
discussion by the court of the trial error issues as to that crime would be
pure dicta since those issues are moot.

Id. at 734.

The analysis for a claim of insufficient evidence is well-settled:

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

3

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
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.

Defendant limits his actual argument to whether the evidence was sufficient to

prove his identity as the perpetrator of all three offenses. As such, we will limit

review of the evidence to the issue of identity.

In considering the issue of proof of identify, our Louisiana Supreme Court in

State v. Neal, 00-674, p. 11 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S.

940, 122 S.Ct. 1323 (2002), stated:

As a general matter, when the key issue is the defendant’s identity
as the perpetrator, rather than whether the crime was committed, the
state is required to negate any reasonable probability of
misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983); State v.
Brady, 414 So.2d 364, 365 (La.1982); State v. Long, 408 So.2d 1221,
1227 (La.1982). However, positive identification by only one witness
is sufficient to support a conviction. See State v. Mussall, 523 So.2d
1305, 1311 (La.1988) (generally, one witness’s positive identification
is sufficient to support the conviction); State v. Ford, 28,724 (La.App.2d
Cir.10/30/96), 682 So.2d 847, 849-50, writ denied, 99-0210
(La.5/14/99), 745 So.2d 12. . . . The trier of fact makes credibility
determinations and may, within the bounds of rationality, accept or
reject the testimony of any witness; thus, a reviewing court may impinge
on the “fact finder’s discretion only to the extent necessary to guarantee
the fundamental due process of law.” Mussall, 523 So.2d at 1310
(La.1988).

At trial, Sherman Edwards, Jr., the owner of the vehicle involved in the theft

herein, testified that he did not see the person’s face who had taken his car “because

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everything was moving so fast[.]” The next time he saw his car, it had crashed into

a tree at an apartment complex. Officers took him to the scene to identify his car.

Lastly, Mr. Edwards identified photographs of his wrecked car that were introduced

into evidence.

Officer Rebecca Willson (now Reed), of the Lake Charles Police Department,

testified that on the night in question, she was dispatched to investigate an attempted

carjacking at the In & Out Mini Mart. While en route to the scene, she was about to

turn right at an intersection when she saw a small, silver car travel through the

intersection at a high rate of speed and fail to stop at the red light. Officer Willson

was aware of the reported carjacking and asked for a description of the stolen vehicle.

From the description she received, Officer Willson determined that the speeding

vehicle was the vehicle that had been stolen.

Officer Willson then pursued the vehicle until it struck a tree in a nearby

apartment complex. A foot chase ensued through the apartment complex and up a

flight of stairs with Officer Willson never losing sight of the suspect. During a

scuffle over her weapon, the suspect pushed Officer Willson, and she fell down the

flight of stairs. The suspect followed Officer Willson down the stairs and continued

the struggle for her gun. Corporal Jeffrey Atkinson arrived on the scene with a canine

while the suspect was still standing over Officer Willson. As he approached Officer

Willson and the suspect, the suspect began to walk away out of Officer Willson’s

view.

Lastly, Officer Willson identified photographs of the vehicle that was driven

and crashed by Defendant. Officer Willson also identified Defendant in court as the

person she chased up the stairs and who was involved in the altercation.

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Corporal Atkinson testified that when he was responding to the report of an

attempted carjacking, he was flagged down by Mr. Edwards, who reported that his

car had just been stolen. Corporal Atkinson got a description of the vehicle and

began driving around to see if he could locate the vehicle. When he heard Officer

Willson call out that she may have the vehicle, Corporal Atkinson headed in her

direction. When he arrived at the apartment complex, he got a visual of Officer

Willson laying on the ground with a man standing over her. Corporal Atkinson got

out of his vehicle and yelled at the man to stop and move away from her. The suspect

slowly stood up from Officer Willson and started to walk away. Corporal Atkinson

instructed the suspect to stop, or he was going to release his canine; the suspect

continued to walk away around the side of the building. Corporal Atkinson released

the canine to apprehend the suspect, and he followed the canine around the side of the

building to where the canine had circled the suspect. Upon command, the canine then

grabbed the suspect’s right arm and took him to the ground. Corporal Atkinson

identified Defendant in court to be the person his canine secured that evening.

Following his apprehension, Defendant was taken back to the In & Out Mini

Mart and was identified by Laticia Fontenot and Shellie Fontenot as the man who

attempted to steal Shellie’s vehicle and then fled on foot to the nearby apartment

complex.

Considering the evidence before this court, we find the State proved that

Defendant was in fact the person who stole Mr. Edward’s car, attempted to disarm

Officer Willson, and committed a battery upon her. Defendant was positively

identified by Officer Willson as the person who was driving the vehicle she was

pursuing, who tried to take her weapon, and who physically assaulted her. Combined

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with the evidence that the vehicle driven by Defendant was the vehicle stolen from

Mr. Edwards shortly before it was first seen by Officer Willson, we find the jury

could readily conclude that it was Defendant who stole Mr. Edwards’ vehicle.

Further, there was no evidence presented at trial to suggest than anyone other than

Defendant had stolen Mr. Edward’s vehicle.

Additionally, Corporal Atkinson’s identification of Defendant as the man seen

standing over Officer Wilson and who was subsequently captured, and the testimony

of Laticia Fontenot and Shellie Fontenot regarding Defendant’s attempted theft of

Shellie’s vehicle just minutes before the theft of Mr. Edwards’ vehicle, lends further

support to Officer Willson’s identification of Defendant as the perpetrator of all three

crimes. Accordingly, we find that the evidence, viewed in a light most favorable to

the prosecution, is sufficient to uphold Defendant’s convictions, and thus, this

assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 1:

In this assignment of error, Defendant argues that his convictions for both

attempted disarming of a peace officer and the underlying battery constitute double

jeopardy. Defendant maintains that the offense of disarming of a peace officer is a

subpart of La.R.S. 14:34, aggravated battery, and thus is a battery offense. As such,

Defendant contends that the State must first prove that a battery or attempted battery

occurred to prove disarming of a peace officer. Although Defendant did not raise the

issue of double jeopardy at trial, a claim of double jeopardy may be raised at any time,

and thus, the matter is properly before this court for the first time on appeal. La.Code

Crim.P. art. 594.

7

Louisiana Code of Criminal Procedure Article 591 provides, in pertinent part:

“No person shall be twice put in jeopardy of life or liberty for the same offense . . . .”

Relying on this court’s opinion in State v. Pierce, 01-94 (La.App. 3 Cir. 10/31/01),

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

that appellate courts have long held that if proof of one crime is essential to the proof

of a greater crime, convictions for both crimes constitute double jeopardy.

In Pierce, 799 So.2d at 749, this court reviewed the applicable law in cases

involving double jeopardy:

Both the United States and the Louisiana Constitutions protect
individuals against twice being put in jeopardy for the same offense.
One of the fundamental guarantees is protection against multiple
punishment for the same offense. State v. Mayeux, 498 So.2d 701
(La.1986). Louisiana courts have applied two distinct tests to determine
whether offenses are the same for double jeopardy purposes. In
Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),
the United States Supreme Court set out the following test: “[. . .] 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 different offenses or only one, is whether each provision requires
proof of an additional fact which the other does not.” See also State v.
Coody, 448 So.2d 100 (La.1984); State v. Vaughn, 431 So.2d 763
(La.1983); and State v. Doughty, 379 So.2d 1088 (La.1980).

The other standard used by the courts is the “same evidence test”
as follows: “If the evidence required to support a finding of guilty of one
crime would also have supported a conviction for the other, the two are
the same 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
a conviction, not all of the evidence introduced at trial.” See also
Coody, 448 So.2d 100; Vaughn, 431 So.2d 763; and State v. Steele, 387
So.2d 1175.

In a single trial, as in this case, the legislative intent regarding
multiple punishment must also be examined. State v. Smith, 95-0061
(La.7/2/96); 676 So.2d 1068. In Smith, the Louisiana Supreme Court
held that separate convictions and sentences for manslaughter and
feticide, which involved the killing of different victims, did not violate
double jeopardy. The Court reasoned that the two statutes were aimed
at different evils, and involved different elements and required different
proof.

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In the instant case, Defendant was convicted of attempted disarming of a peace

officer, which

is committed when an offender, through use of force or threat of force,
and without the consent of the peace officer, takes possession of a
firearm from the person of a peace officer or from an area within the
peace officer’s immediate control, when the offender has reasonable
grounds to believe that the victim is a peace officer acting in the
performance of his duty.

La.R.S. 14:34.6(A)(1). Defendant was also convicted of simple battery. Battery is

defined as “the intentional use of force or violence upon the person of another[.]”

La.R.S. 14:33.

Applying the Blockburger and same evidence tests, we find that Defendant’s

convictions do not constitute double jeopardy. Under Blockburger, simple battery

requires proof of the use of force upon another person. Disarming of a peace officer

does not require proof of the use of force upon another person, but instead requires

the use or threat of force in taking possession of a firearm from a peace officer’s

person or an area within the peace officer’s immediate control, without the peace

officer’s consent, when the offender has reasonable grounds to believe that the victim

is a peace officer acting in the performance of his duty. These offenses clearly

require proof of an additional fact or act which the other does not.

Using the same evidence test, we likewise find that separate incidents occurred

that support Defendant’s convictions for both offenses. Defendant first attempted to

disarm Officer Willson following a foot chase through a nearby apartment complex.

Just before reaching the top of some stairs in the apartment complex, Defendant

indicated to Officer Willson that he had surrendered, and he then sat down on the

platform at the top of the stairs. Officer Willson, who was located two to three steps

below Defendant, instructed him to lie down and put his hands behind his back.

9

Defendant complied, but when Officer Willson reached for her handcuffs, Defendant

sprang up and grabbed the gun in her holster. Officer Willson then put both of her

hands on her weapon, and the two began struggling. Officer Willson began twisting

and was able to get Defendant’s hands off her weapon. Up to this point, there was

no evidence to indicate that a battery had occurred, only that Defendant attempted to

disarm Officer Wilson. After Officer Willson freed her weapon from Defendant’s

grip, he then committed a battery upon her by pushing her shoulders, causing her to

lose her balance and fall backwards down the flight of stairs to the ground.

The record includes additional evidence of both a battery and further attempts

to disarm Officer Willson. Defendant continued to pursue Officer Willson after she

landed on the ground and used physical force on her person in an attempt to take her

weapon. Defendant then started kicking Officer Willson to roll her off the weapon,

but was unsuccessful, thereby committing both a battery and an attempt to disarm

Officer Willson.

Next, Defendant stood over Officer Willson and grabbed her rig belt.

According to Officer Willson, Defendant was trying to rip it off her and to get her to

turn over. Defendant continued to yank on Officer Willson’s rig belt until Corporal

Atkinson arrived. At this point, the jury could have concluded that Defendant’s use

of force did not amount to a battery on Officer Willson’s person, but was an attempt

to disarm her. With individual incidents of both a battery and an attempt to disarm

a peace officer, and using the same evidence test, Defendant’s convictions do not

violate double jeopardy.

For the reasons stated herein, we find that Defendant’s convictions for attempt

to disarm a peace officer and simple battery do not violate the double jeopardy

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prohibitions in the United States and Louisiana Constitutions. Accordingly, this

assignment of error is without merit, and Defendant’s convictions are affirmed.

ASSIGNMENT OF ERROR NO. 2:

In this assignment of error, Defendant argues that the trial court erred when it

deferred ruling on Defendant’s pro se post-trial motions regarding ineffective

assistance of counsel (Motion for New Trial) and defense counsel’s Motion to

Withdraw until after the habitual offender adjudication and sentencing. Defendant

complains that the trial court chose to defer its ruling on the Motion to Withdraw until

the case was over so that defense counsel, Mr. Todd Clemons, would continue to

represent him, even though the Motion to Withdraw was received prior to the habitual

offender hearing held on June 28, 2010. Defendant contends that the trial court’s

deferral in ruling on the motion was a constitutional error, requiring the reversal of

his sentences and convictions.

In support of his argument, Defendant refers to State v. Brown, 03-897 (La.

4/12/05), 907 So.2d 1, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569 (2006), wherein

the trial court granted defense counsel’s motion to withdraw filed prior to trial during

a status conference. However, other than the fact that a motion to withdraw was filed

in both cases, the facts in Brown are not similar to those in the instant case, and thus,

the Brown case is readily distinguishable and provides no guidance on the issue.

Defendant was convicted of the offenses herein on March 12, 2010. At the

conclusion of trial, the State requested additional time to file a habitual offender bill.

Arraignment on the habitual offender bill was scheduled for April 29, 2010.

Mr. Clemons, however, was not present at the hearing that day, and the arraignment

was rescheduled. The State indicated that it had not yet filed the habitual offender

11

bill. A habitual offender bill of information was then filed on May 10, 2010,

asserting that Defendant was a third felony habitual offender.

Also on May 10, 2010, Defendant filed a pro se Motion for New Trial, arguing

in part that his defense counsel was ineffective. Defendant then wrote a letter to the

trial court judge dated May 16, 2010. In his letter, Defendant complained of

ineffective assistance of trial counsel and asserted various violations of his rights

before and during trial.

Next, the following post-trial motions were filed by Defendant:

1. Pro se Motion for Written Opposition to the State’s Information in
the Habitual Offender’s Bill filed on May 25, 2010.

2. Two pro se Motions to Quash filed on June 1, 2011.

3. Pro se Motion to Quash Proceedings, Sentencing Due to
Unconstitutional Issues and Motion to Suppress filed on June 28, 2010.

4. Pro se Motion to Quash Proceedings, Sentencing Due to Unconstitutional
Issues and Motion to Suppress filed on June 29, 2010 (identical motions).

On June 28, 2010, a hearing was held with regard to the habitual offender bill

filed by the State, Mr. Clemons’ Motion to Withdraw, and Defendant’s Motion for

New Trial. According to the State, the habitual offender bill intended to establish that

Defendant was a third felony offender, and thus, he was subject to an enhanced

sentence. The State then proceeded with its case, and the trial court found Defendant

to be a third felony offender. Mr. Clemons objected to the trial court’s ruling, and the

trial court noted same, “specifically as to the St. Tammany conviction date versus the

information for the habitual offender adjudication.” The trial court did not sentence

Defendant at that time, noting that other motions were still pending.

The trial court then asked Mr. Clemons if he was going to assist Defendant

with regard to his Motion for New Trial. After a conversation held off the record,

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Mr. Clemons informed the trial court that he would not be assisting Defendant in his

pro se motions. The trial court then confirmed for the record that Mr. Clemons had

asked to be allowed to withdraw as counsel. A formal motion was not filed at that

time.

Before taking up Defendant’s pro se Motion for New Trial, the trial court asked

Defendant if he objected to Mr. Clemons withdrawing as his attorney. The Defendant

responded:

DEFENDANT PAPILLION:

Of course, Your Honor. I thought he was with me all the way
through, but I mean –

THE COURT:

It says, “was retained to represent Mr. Papillion through trial and
sentencing if necessary;” and, since he is -- I am gonna -- That does
make sense. I am going to withhold that, Mr. Clemons. I can release
you from his pro se motions since you don’t adopt those, but I’m not
going to sign the withdrawal until we actually formalize the sentencing
because I believe that is probably part of your retention.

MR. CLEMONS:

Okay. Judge, that’s why I made it clear in my motion that that
was part of my retention to represent him through sentencing. Just on
things that transpired since that time I felt and I still feel it’s in his best
interest to have somebody who could advocate from this point going
forward on his behalf and also because Mr. Papillion is indigent, and at
some point hopefully the Court is going to appoint someone to take over
this matter moving forward. I just thought this would be a good
transition period to do that, Your Honor, but I have no problem with
staying on until he gets sentenced.

THE COURT:

Well, since that is in part of the motion, I think I would be
probably jumping the gun, so to speak, as to sign the Motion to
Withdraw at this point.

13

MR. CLEMONS:

No problem, Judge. As far as withdrawing for today -- I mean
leaving for today to go to my office?

THE COURT:

I understand you have not adopted the pro se motions that were
filed by the defendant, therefore you may leave if you so desire.

MR. CLEMONS:

Thank you, Judge.

(Mr. Clemons exits courtroom)

Defendant then proceeded to present his case on his Motion for New Trial.

After determining that the motion involved claims of ineffective assistance of

counsel, issues of trial strategy, and pretrial issues, the trial court concluded that the

motion did not set forth any grounds that would entitle Defendant to a new trial and,

thus, denied the motion.

On July 6, 2010, the trial court took up Defendant’s Motions to Quash prior to

sentencing. Again, the motions were not adopted by defense counsel. With regard

to the first Motion to Quash that involved a pretrial matter, the trial court ruled that

it was not filed timely and, thus, was procedurally inappropriate. The second motion

was also denied, as Defendant did not allege any particularities regarding his

allegation that exculpatory evidence existed. Defendant was then sentenced while

represented by Mr. Clemons.

After Defendant was sentenced, the trial court granted Mr. Clemons’ oral

Motion to Withdraw as counsel of record. In Mr. Clemons’ written motion filed that

same day, he stated that Defendant “was an extremely difficult client to represent for

a multitude of reasons[,]” but “despite the problems, he was well represented.” He

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added that on June 24, 2010, he received from the trial court copies of pro se motions

filed by Defendant, along with a letter to the trial court judge dated May 16, 2010.

Mr. Clemons stated that Defendant’s letter made many false assertions about his

representation of Defendant, and it was at least the second time Defendant had written

to the trial court judge during his representation of Defendant, despite being

admonished not to do so after the first occasion. Further, Mr. Clemons stated that

Defendant’s insistence on filing pro se motions made it very difficult to effectively

represent him.

Considering the record herein, we find that the trial court did not err in

deferring its ruling on Mr. Clemons’ oral Motion to Withdraw. The hearing transcript

of June 28, 2010, indicates an agreement by both parties to defer a ruling on

Mr. Clemons’ oral Motion to Withdraw until sentencing was concluded. When given

the opportunity to object, Defendant clearly expressed his desire for Mr. Clemons to

continue representing him through sentencing. Likewise, Mr. Clemons agreed that

the motion would be more timely considered upon the conclusion of sentencing.

Additionally, the record does not support Defendant’s assertions that he did not

argue the merits of his pro se Motion for New Trial wherein he asserted ineffective

assistance of counsel. The trial court concluded that the Motion for New Trial did not

raise a valid claim upon which a new trial could be granted. Further, Defendant is

not prevented from raising any and all claims of ineffective assistance of counsel in

an application for post-conviction relief.

For the reasons stated herein, we find no merit to this assignment of error.

PRO SE ASSIGNMENT OF ERROR NO. 1:

In this assignment of error, Defendant argues that the trial court failed to

15

comply with La.R.S. 15:529.1(D)(3) when it did not file written findings as to the

multiple offender adjudication. Louisiana Revised Statues 15:529.1(D)(3) (emphasis

added) reads:

(3) When the judge finds that [a defendant] has been convicted of
a prior felony or felonies or adjudicated a delinquent as authorized in
Subsection A, or if he acknowledges or confesses in open court, after
being duly cautioned as to his rights, that he has been so convicted or
adjudicated, the court shall sentence him to the punishment prescribed
in this Section, and shall vacate the previous sentence if already
imposed, deducting from the new sentence the time actually served
under the sentence so vacated. The court shall provide written reasons
for its determination. Either party may seek review of an adverse ruling.

In State v. Breaux, 00-236 (La.App. 5 Cir. 8/29/00), 767 So.2d 904, writ

denied, 00-2874 (La. 6/29/01), 794 So.2d 808, the court found that the oral reasons

given for finding the defendant to be a third felony offender, which were transcribed

and formed part of the record, were sufficient to comply with the statutory

requirement in La.R.S. 15:529.1(D)(3). Also, in State v. Neal, 00-41 (La.App. 5 Cir.

5/30/00), 762 So.2d 281, the court found that the trial court’s failure to supply written

reasons for its habitual offender determination was harmless error, because the trial

court’s reasons were transcribed and were a part of the record. See also State v.

James, 41,069 (La.App. 2 Cir. 8/23/06), 938 So.2d 1191.

Likewise, we find that the trial court’s oral reasons given for finding Defendant

to be a third felony offender in the instant case, which were transcribed and form part

of the record, satisfy the statutory requirement of providing written reasons for the

trial court’s habitual offender determination and that the trial court’s failure to

provide written reasons constituted harmless error. Accordingly, this assignment of

error has no merit.

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PRO SE ASSIGNMENT OF ERROR NO. 2:

In this assignment of error, Defendant argues that the trial court erred when it

allowed unrelated other crimes evidence through the testimony of Laticia Fontenot

and Shellie Fontenot. In support of his argument, Defendant refers to La.Code Evid.

art. 404(B)(1) and asserts that the court may not admit evidence of other crimes to

show that a defendant is a man of bad character who has acted in conformity

therewith. Louisiana Code of Evidence Article 404(B)(1) reads:

B. Other crimes, wrongs, or acts. (1) Except as provided in
Article 412 [victim’s past sexual behavior in sexual assault cases],
evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, provided that upon request by
the accused, the prosecution in a criminal case shall provide reasonable
notice in advance of trial, of the nature of any such evidence it intends
to introduce at trial for such purposes, or when it relates to conduct that
constitutes an integral part of the act or transaction that is the subject of
the present proceeding.

Defendant adds that even if the evidence is independently relevant, it must be

excluded “if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or waste of time.” La.Code Evid. art. 403.

On January 22, 2010, the State filed a Notice of Intent to Offer Other Crimes

Evidence Pursuant to Louisiana Code of Evidence Article 404(B). Pursuant to State

v. Prieur, 277 So.2d 126 (La.1973), a hearing was held on the first day of trial,

March 9, 2010, wherein the parties discussed the testimony of Laticia Fontenot and

Shellie Fontenot. The State argued that the testimony of these two women was

admissible because it related to the conduct that constituted an integral part of the act

or transaction that was the subject of the trial. The State maintained that a Prieur

17

notice was filed out of an abundance of caution. The trial court then indicated that

it needed to hear the substance of the witnesses’ testimony to determine if the

evidence fell within the general exception of Prieur.

The State then proceeded to provide the facts of which it expected the women

to testify. The State indicated that both Laticia Fontenot and Shellie Fontenot were

the occupants of a vehicle that was parked at the In & Out Mart at 7:54 p.m. on the

same date and prior to the commission of the instant offenses. Defendant was

identified as an individual who entered a vehicle occupied by Laticia while the owner,

Shellie, was inside the store. Defendant then attempted to start it. Laticia did not

give Defendant permission to enter the vehicle and ended up in a scuffle with

Defendant while trying to get the key out of the ignition. Laticia was able to remove

the key from the ignition and stop Defendant from driving away.

When Defendant exited the vehicle, he ran less than a block away to a nearby

apartment complex where, moments later, he successfully stole Mr. Edwards’ vehicle.

The State concluded that the basis for the testimony was to show that the incidents

happened on the same date and very close in time. The trial court confirmed that no

charges arose out of Defendant’s actions with Laticia and Shellie. Counsel for

Defendant stated that he wanted to wait and hear their testimony before giving the

trial court his position on the issue. The State then asked if both witnesses could be

called. Defense counsel did not object but requested that they be placed under the

rule of sequestration if the State was going to call both women.

Laticia testified first about the incident involving Defendant that occurred just

minutes before the theft in the instant matter. Around 7:45 to 8:00 p.m., Laticia and

four other women were on their way to Beaumont, Texas, to eat dinner, and they

18

stopped at the In & Out Mart to get money from the automatic teller machine located

inside the store. Everyone went inside the store except Laticia, who remained seated

in the center of the backseat. The keys were in the ignition, but the car was not

running. Laticia was talking on her phone when a man opened the door and sat down

in the vehicle. Laticia asked what he was doing, and he told her to “Just wait up.”

The two began to struggle over the set of keys in the ignition. Laticia was able to pull

the keys from the ignition, but the man grabbed the keys from her.

Laticia then described how she exited the vehicle with the man remaining in

the driver’s seat. Soon thereafter, Shellie exited the store and confronted the man.

Shellie jerked her keys and cigarettes from his hands, and the man took off running

towards a nearby apartment complex. After police arrived, Laticia and her party were

instructed to wait at the scene because another 911 call had come in with a possible

lead on the perpetrator. About thirty to forty minutes later, police returned to the

store with Defendant in the backseat of the vehicle. Laticia, the four women in her

party, and the store clerk all identified Defendant as the perpetrator. Laticia then

identified Defendant in court.

On cross-examination, Laticia was asked about the identification process.

Laticia stated that Defendant did not get out of the vehicle. After the women

identified him, the police took them back to Shellie’s vehicle and instructed them to

fill out an incident report. Laticia was never shown a photo line-up.

The State then called Shellie to testify. In response, defense counsel stated he

would stipulate to what Shellie would testify to and that he did not see the need to

have another witness. The State then argued that because of the proximity in time

and location to the actual theft, the evidence was an integral part of the act or

19

transactions that were a part of the proceeding at hand. The State maintained that the

witnesses exhibited for the trial court an ability to identify Defendant as the

perpetrator who had carried out acts of attempted theft of an automobile which was

very similar in scope to the act that was committed moments later at the neighboring

apartment complex. The State added that the evidence demonstrated Defendant’s

intent to steal an automobile on the evening of December 8, 2006, and established his

identity as the person involved in the subsequent felonies at issue. Further, the State

asserted that the evidence went toward the absence of any mistake or accident as to

Defendant’s intent that evening with regard to stealing an automobile. Accordingly,

the State urged that the probative value outweighed any prejudicial effects.

In response, defense counsel argued that the evidence was not part of the same

act or transaction but was a separate alleged crime. He conceded that the alleged

offense occurred in very close proximity to the offense for which Defendant was

charged but was not an integral part of the offenses. Defense counsel maintained that

using the balancing test of La.Code Evid. art. 403, there was a substantial chance that

Defendant would be unfairly prejudiced by the other crimes evidence and that the jury

would be confused as to which offenses he was on trial for. Defense counsel

conceded that the evidence had probative value with regard to intent and possibly

identity. He urged, however, that the prejudice of the jury hearing about another

alleged crime for which he was not on trial clearly outweighed the probative value of

the evidence.

The State responded that the testimony did not show that an attempted theft

occurred and then thirty minutes later the instant theft occurred. The State stressed

that the evidence indicated that about thirty minutes after the alleged offense

20

occurred, Defendant had been apprehended and brought back to the store for

identification. The testimony also showed that following the alleged offense,

Defendant had run away to a nearby apartment complex, the same complex where the

instant theft occurred. Additionally, the State urged, without opposition from

Defendant, that the subsequent theft occurred about ten minutes after the attempted

theft. As such, the State maintained that the probative value outweighed the

prejudicial effect, asserting that the jury needed to hear the evidence to get a clear

understanding of the events that took place that night. The State concluded that

Defendant was on a mission to steal a car that night, and, when he was not able to

steal the first one, he successfully stole another one that he crashed soon thereafter.

In finding that the evidence was admissible, the trial court reasoned:

In looking at what has been presented here today, the Court finds
that the State has proven that an act, wrong or other offense did in fact
occur. Also the Court notes in looking at the totality of that, the
temporal connection, the proximity connection is such that the Court
would find that the probative value in this situation outweighs any
undue prejudicial effect of that evidence. The totality of the
presentation is such that the State will be able to present that in
establishing their elements with regard to the allegations that have been
made against the defendant.

Counsel for Defendant objected to the trial court’s ruling and then sought to

clarify whether the ruling applied to both witnesses. Defense counsel argued that

testimony from both women would be cumulative. The trial court agreed and found

that the testimony of only one of the two witnesses was sufficient. The trial court

noted, however, “that the State may have an opportunity for rebuttal[,] depending on

what’s provided by the [d]efense that could lead to the additional witness or

additional evaluation.” Neither party objected to the ruling.

21

At trial, the State approached the bench after the jury was dismissed for lunch

to request that it be allowed to call Shellie Fontenot on direct, rather than as a rebuttal

witness. The State maintained that Shellie’s testimony was not cumulative and

stressed that identification was going to be a much larger issue than anticipated. The

testimony of both Laticia and Shellie would provide two separate identifications of

Defendant as the result of separate interactions with him.

Defense counsel maintained his prior position regarding the prejudicial effect

of the testimony. He argued that the testimony of the second witness about the

alleged other crime did not reach the objective of the criminal code and urged the trial

court to be cognizant of the balancing test. Defense counsel warned that too much

evidence about the other crime could tip the scales in favor of finding him a bad

person who steals cars. He also urged that one witness could clearly establish the

alleged attempt to steal that car.

The State responded that the parties had not addressed whether the testimony

from both witnesses would be cumulative and, thus, prejudicial. The State argued

that the question previously addressed by the parties was whether or not the testimony

was admissible and that it was the State’s position that both witnesses should be able

to testify in that regard.

The trial court then vacated its earlier ruling that one witness would be

sufficient and held that both witnesses would be allowed to testify. The trial court

noted that during voir dire and opening statements, significant issues had been raised

with regard to the lack of evidence in the case. Because identification was at issue,

the trial court determined that it would allow the testimony of both witnesses.

Defendant subsequently objected to the ruling.

22

Laticia Fontenot and Shellie Fontenot testified at trial about their involvement

with Defendant minutes before he stole the vehicle involved in the instant offenses.

Laticia was in the back seat of Shellie’s car when Defendant attempted to steal it.

The car was parked at a corner gas station while Shellie and three other passengers

were inside the station. Defendant sat down in the driver’s seat, and Laticia began

to scream and struggle with Defendant to prevent him from starting the vehicle.

Eventually, Laticia pulled the key from the ignition and got out of the car, still

screaming. Meanwhile, Shellie exited the store and approached Defendant, who was

still sitting in her vehicle. Shellie yelled at Defendant, asking him if he was trying to

steal her vehicle. She also noticed that he was holding her cigarettes and her keys,

and she grabbed them from him. When the store clerk came outside and said she was

going to call the police, Defendant took off running toward a nearby apartment

complex.

A police officer arrived at the store to speak with the witnesses and then asked

them to stay at the store because they had a lead on a suspect. Officers returned to the

store about thirty minutes later with Defendant in the back seat of the vehicle. Laticia

was asked if she recognized Defendant, and she was able to positively identify him

as the perpetrator. Shellie also testified that Defendant was a light-skinned black

man. She then identified Defendant in court as the man who attempted to take her

vehicle on the night in question.

We note that on appeal, Defendant does not argue that the testimony was

cumulative but that it was prejudicial and admitted solely for the purpose of inflaming

the jury. As such, we need not address the cumulative-testimony issue. Before and

during trial, the State argued that the other crimes evidence was admissible in that the

23

conduct constituted an integral part of the offense and was necessary for purposes of

identification and to show intent.

As noted by this court in State v. Drake, 04-1636, p. 6 (La.App. 3 Cir. 6/1/05),

903 So.2d 1166, 1170, “[w]hen identity is an issue, evidence of other crimes is

admissible to prove identity. State v. Phillips, 92-1063 (La.App. 4 Cir. 2/29/96), 670

So.2d 588, writ denied, 96-2131 (La.9/5/97), 699 So.2d 85; La.Code Evid. art.

404(B)(1).” In Drake, the State attempted to admit other crimes evidence to prove

the defendant’s identity as the perpetrator of a robbery. Each of the robberies for

which the defendant was convicted involved a perpetrator who wore a mask. None

of the robbery victims were able to positively identify the defendant as the person

who committed the offense. Following the last robbery, an eyewitness saw the

suspect and provided a license plate number of the automobile into which he jumped.

The defendant and an accomplice were later arrested, and the accomplice made a

statement to the police, implicating the defendant in the robberies at issue. The court

found the evidence admissible, because none of the witnesses, other than his

accomplice, could identify the defendant as the perpetrator of the robberies. As such,

the court determined that the defendant’s identity of the perpetrator was an issue.

In State v. Campbell, 96-209 (La.App. 3 Cir. 11/6/96), 683 So.2d 1302, writ

denied, 96-2864 (La. 4/25/97), 692 So.2d 1081, the State sought to submit evidence

of the defendant firing a gun ten to fifteen minutes before the shooting of an officer.

The witnesses testified that after an argument, the defendant fired three shots at a car

as it drove away from a club. The police later collected three casings at the club and

one bullet from the car in question. Expert testimony at trial linked the casings and

bullet from the earlier shooting incident to a casing and bullet recovered from the

24

murder scene. On appeal, the court found that the evidence of the earlier shooting

was clearly probative as to the identity of the officer’s killer. The murder weapon was

never recovered, and only one witness testified that he saw the officer’s murder.

Also, the defense vigorously attacked the credibility of the witness.

In State v. Jolly, 00-181 (La.App. 5 Cir. 7/25/00), 768 So.2d 165, writ denied,

00-2467 (La. 10/5/01), 798 So.2d 959, the court addressed the issue of using other

crimes evidence to prove intent to commit the crime of theft of goods valued between

$100.00 and $500.00. The State sought to introduce evidence that prior to the

offense, the defendant was acting suspiciously in the store and attempted to take some

property. The State maintained that “it was not introducing the evidence to show that

the defendant acted in a wrong manner or [had] bad character, but rather to show the

defendant’s system and intent.” Id. at 168. On appeal, the court noted that an

essential element of the offense was the intent to permanently deprive the merchant,

and the defendant’s intent at the time of the offense was a contested issue at trial. As

such, the court found that the testimony regarding the defendant’s actions in the store

prior to the date of the theft was properly admitted to show intent and to show that his

actions were not the result of mistake or accident.

In the instant case, the victim, Mr. Edwards, could not positively identify

Defendant as the person who took his vehicle. As such, for the offense of theft over

$500.00, the identity of the perpetrator was clearly an issue. Evidence of Defendant

attempting to commit the same crime just minutes before and in the same area as the

theft herein was highly probative of his identity in that theft. Further, the evidence

demonstrated Defendant’s intent to commit the theft for which he was on trial.

Lastly, the evidence shows that Defendant’s actions in taking Mr. Edwards’ car were

25

not the result of mistake or accident.

Accordingly, we find that the trial court did not err in allowing the other crimes

evidence.

PRO SE ASSIGNMENT OF ERROR NO. 4:

Defendant argues, “Appellate [sic] contends that the trial [court counsel] erred

when he did not follow Louisiana Uniform Act [sic] to secure the attendance of his

witness[es] by subpoenas.” Defendant asserts that he had become disenchanted with

his attorney prior to trial, so he wrote to the trial court judge detailing the problems

he was having with his lawyer. Defendant alleges that those problems involved

communication between him and his attorney as well as the failure to subpoena

witnesses and evidence needed for trial. Defendant urges that the right to subpoena

witnesses arises under both statutory and constitutional law.

Defendant claims that the attendance of his witnesses was essential as their

testimony would have aided his case at trial. Defendant asserts that he should have

been allowed to subpoena the witnesses “whether or not the trial court, the state[,] or

his attorney found the witnesses [to be] believable, credible, or offensive.” Defendant

states that, because the witnesses were not subpoenaed, he will never know whether

the jury would have found him guilty anyway. Defendant maintains “that his right

of compulsory process was abridged because of [sic] the trial [court] did not secure

the attendance of his material defense witnesses,” which prevented him “from

presenting his only defense.” Based on these arguments, Defendant requests that this

court reverse his convictions and sentences.

The record shows that Defendant wrote a letter to the trial court judge on

October 28, 2009. In this letter, Defendant explained that he had asked his attorney

26

to subpoena two witnesses. Defendant listed the first name, building number, and

apartment complex of one witness and gave the name and address of a second

witness. Defendant stated that, when he requested that his attorney subpoena the

witnesses, his attorney said it was too late. Defendant further related that he also

asked his attorney to subpoena two ladies from a different case docket number.

Defendant professed that these witnesses were needed to prove that the officer who

wrote the report committed malfeasance and criminal conspiracy.

In his letter, Defendant stated he additionally requested that his attorney

subpoena the cameras from the police unit to show that the officers used excessive

force in arresting him. Defendant alleged that, after the canine had brought him face

down on the ground, Officer Mitchell Sawyer ran over and kicked him in the head

and that this was caught on the police unit cameras. Defendant noted he also asked

his lawyer to subpoena surveillance cameras to prove that the officers brought

Defendant to a specific location to be identified by an alleged victim. Defendant

asserted that the surveillance cameras would prove that the officer who wrote the

police report was not the officer in the police report and that, as a result thereof, the

officers were not credible and were lying.

Defendant’s correspondence also named another witness who provided his

attorney with an affidavit. Defendant did not claim he requested that his attorney

seek a subpoena for her to appear at his trial. Finally, Defendant stated that he would

appreciate the trial court’s “help in getting this information to court, or [in] allowing

it to go on record” and that he had requested it through his attorney and the court.

Our review of the October 29, 2009 letter does not show that Defendant

specifically asked the trial court to issue subpoenas for the witnesses. Moreover, the

27

record shows that the trial court assisted Defendant by relaying a copy of his letter

detailing his requests to his attorney.

“An irregularity or error cannot be availed of after verdict unless it was

objected to at the time of occurrence” unless the error applies to a ruling on a written

motion. La.Code Crim.P. art. 841. Since Defendant’s letter does not constitute a

motion seeking subpoenas for the witnesses, and since Defendant does not point to

any other place in the record where he directly moved the trial court to subpoena his

witnesses, he cannot now claim error for the trial court’s failure to issue those

subpoenas.

Insofar as Defendant may be asserting an ineffective assistance of counsel

claim for failure to subpoena the witnesses, this claim is relegated to post-conviction

relief as it would require a review of evidence not contained in the record.

Accordingly, Defendant is not entitled to relief under this assignment of error.

PRO SE ASSIGNMENT OF ERROR NO. 5:

Defendant asserts that “a conflict between him and his court appointed counsel

before and during trial constitutes a violation of his rights guaranteed by the Sixth

Amendment to the United States and Louisiana Constitution[s].” Defendant restates

that prior to trial, he had become increasingly unhappy with the representation

provided by his attorney. Defendant declares that he sent letters to the trial court

judge on October 28, 2009, and May 16, 2010, detailing the problems he was having

with his attorney. Moreover, because his attorney failed to file post-trial motions,

Defendant filed his own post-trial motions pro se. Defendant claims that he provided

the motions to his attorney within a reasonable time and manner for filing.

Defendant argues that this dissension between him and his attorney created an

28

irreconcilable conflict between them. He felt that his attorney was indifferent toward

representing him. Defendant claims that his attorney did not proceed according to

how he wanted him to “file various pre-trial motions, interview specific witnesses

who could have corroborated certain aspects of the defense theory of the charge,

interview State’s witnesses, and investigate relevant facts of the case.” Defendant

further complains that his attorney failed to inquire into the facts and the merits of his

pro se motions.

Defendant maintains that his letters brought this all to the attention of the trial

court in a timely manner so that it would not obstruct the proceedings of that court.

He likens his situation to instances where an attorney failed to cross-examine

witnesses at trial or where the represented party has become so embroiled in an

irreconcilable conflict with his attorney as to deprive the represented party of

effective assistance of counsel. Defendant argues that he had the right to conflict-free

representation. Though Defendant acknowledges that this applies to cases where the

defense attorney’s loyalties are divided, he argues that this also applies to his case

because his lawyer owed a duty to the prosecution, whose interests were adverse to

him. Defendant asserts, therefore, that he was denied his “right to a fair and full trial

with conflict-free attorney.” He asks this court to reverse his convictions and

sentences based on the arguments contained in this assignment of error.

As previously stated, the record also contains Defendant’s May 16, 2010

post-trial letter to the trial court judge. In his missive, Defendant named two

witnesses and alleged that he asked his attorney to subpoena them. Defendant also

asserted that his attorney failed to answer his questions about a plea deal offered by

the State. He further claimed that he asked his attorney, via correspondence, about

29

getting a preliminary hearing. Defendant said his attorney did not file a motion for

preliminary examination, and, as a result thereby, he did not get one. Defendant

informed the trial court that he had filed three different pro se motions for a

preliminary hearing and that he subsequently followed up his motions by asking the

trial court about the preliminary hearing twice thereafter. He additionally complained

that his attorney could have filed motions to quash and for new trial.

In his letter, Defendant claimed that the witnesses for which he requested

subpoenas would have provided “powerful testimony” on his behalf about what they

saw, which would have shown that the officer lied. Defendant complained that his

requested witnesses were not subpoenaed for trial. He further claimed that he had no

communication with his attorney. Defendant went on to explain that he filed pro se

motions because his attorney wanted an additional $15,000.00 to file the following

motions: a motion seeking new trial; a motion to oppose the habitual offender bill of

information; and, a post-trial motion to quash. Defendant did not ask the trial court

to take any action in response to his letter. He then attached to his letter a post-trial

Motion to Quash based on ineffective assistance of counsel as well as a post-trial

Motion to Suppress evidence due to a faulty or missing chain of evidence.

Defendant does not assert that his trial attorney was engaged to represent,

either in the past or contemporaneously, any party having a conflict of interest with

his defense of the instant case. He does not allege any facts that would have divided

his attorney’s loyalties. See La.Code Crim.P. arts. 511 and 517; see also State v.

Kahey, 436 So.2d 475 (La.1983). Defendant has failed to prove any conflict of

interest; hence, his claim of conflict of interest is without merit.

Insofar as Defendant appears to be asserting an ineffective assistance of

30

counsel claim based on his trial attorney’s failure to adequately investigate the case,

based on his trial attorney’s refusal to allow Defendant to dictate trial strategy, and

based on the possibility that the resulting discord between Defendant and his trial

attorney affected his attorney’s trial performance, those assertions are relegated to

post-conviction relief as the resolution of the issue would require the review of

evidence that is currently not in the record.

Accordingly, Defendant is not entitled to relief under this assignment of error.

PRO SE ASSIGNMENT OF ERROR NO. 6:

In this assignment of error, Defendant argues that trial counsel was ineffective

by failing to object to the exclusion of responsive verdicts. Defendant maintains that

La.R.S. 14:34.2, battery of a police officer, and La.R.S. 14:37, aggravated assault,

should have been included as responsive verdicts to La.R.S. 14:34.6 and 14:27,

attempt to disarm a peace officer.

As noted by this court in State v. Christien, 09-890, p. 7 (La.App. 3 Cir.

2/3/10), 29 So.3d 696, 701:

A claim for ineffective assistance of counsel is properly raised in
an application for post-conviction relief because this allows the trial
court to order a full evidentiary hearing on the matter. State v.
Burkhalter, 428 So.2d 449 (La.1983). However, where the record
contains sufficient evidence to decide the issue, and the issue is raised
by an assignment of error on appeal, it may be considered by the
appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d
804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d
461.

See also State v. Jones, 09-1453 (La.App. 3 Cir. 8/11/10), 45 So.3d 1136.

With regard to ineffective assistance of counsel, the second circuit, in State v.

Kinsey, 42,935, p. 9 (La.App. 2 Cir. 2/13/08), 976 So.2d 315, 320-21, stated the

following:

31

The right of a defendant in a criminal proceeding to the effective
assistance of counsel is mandated by the Sixth Amendment to the U.S.
Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A
claim of ineffectiveness of counsel is analyzed under the two-prong test
developed by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first
must show that counsel’s performance was deficient. The assessment
of an attorney’s performance requires his conduct to be evaluated from
counsel’s perspective at the time of the occurrence. A reviewing court
must give great deference to trial counsel’s judgment, tactical decisions
and trial strategy, strongly presuming he has exercised reasonable
professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d
Cir.1991).

Second, the defendant must show that counsel’s deficient
performance prejudiced his defense. This element requires defendant to
establish that but for counsel’s unprofessional errors, there is a
reasonable probability the outcome of the trial would have been
different. Strickland, supra.; State v. Pratt, 26,862 (La.App. 2d
Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662
So.2d 9.

See also State v. C.S., 10-507 (La.App. 3 Cir. 11/17/10), 50 So.3d 983.

Responsive verdicts allowed under La.Code Crim.P. art. 814(A)(14.1) for

attempted disarming of a peace officer include battery of a police officer and

aggravated assault. The record before us in the instant case reflects that the jury was

not provided with any responsive verdicts to the offense of attempt to disarm a peace

officer. Additionally, defense counsel did not object to the jury charges at trial.

In State v. Roland, 36,786 (La.App. 2 Cir. 6/5/03), 850 So.2d 738, writ granted

in part, 03-1930 (La. 1/16/04), 865 So.2d 692, writ denied, 03-2395 (La. 2/13/04),

867 So.2d 685, our colleagues on the second circuit were faced with a similar claim.

In that case, the defendant argued that his counsel was ineffective for failing to object

to the exclusion of criminal trespass as a responsive verdict to the charged offense of

unauthorized entry of an inhabited dwelling. The court stated:

32

The fact that a responsive verdict is not included in a jury charge is not
necessarily an error patent, and does not establish ineffective assistance
of counsel. When the crime of prosecution is one of the 58 listed in
C.Cr. P. art. 814, the trial court may “exclude” a responsive verdict, but
cannot add to the number. See, State v. Hall, 26,505 (La.App.2d
Cir.12/7/94), 647 So.2d 453, writ denied, 95-2188 (La.3/17/97), 691
So.2d 69. A defendant may also not object to the addition or deletion of
responsive verdicts as a trial strategy. See, State v. Martin, 525 So.2d
535 (La.App. 5th Cir.1988).

Id. at 745-46. The court in Roland concluded that the jury’s verdict was clearly

supported by overwhelming evidence, and thus, nothing in the record pointed to an

ineffective assistance of counsel claim.

Our supreme court, however, granted writs in part, in Roland, 865 So.2d 692,

and ordered the district court to hold a hearing to determine whether trial counsel

rendered ineffective assistance by failing to request inclusion of criminal trespass as

a responsive verdict. The court found that the record was insufficient to determine

the merits of the defendant’s claim, considering prior rulings where criminal trespass

was found to be a lesser and included offense of unauthorized entry of an inhabited

dwelling.

In the instant case, although battery of a police officer and aggravated assault

are responsive verdicts of disarming of a peace officer, the record is sufficient to

determine the merits of Defendant’s claim, and it does not support Defendant’s claim

that his counsel was ineffective for failing to object to the exclusion of these verdicts.

The jury’s verdict of attempting to disarm a peace officer was clearly supported by

the evidence adduced at trial—with the use of force and without the consent of

Officer Willson, Defendant attempted to take possession of her service gun while

holstered on her person. This evidence to support this conviction, however, would

not satisfy the elements of the responsive verdicts of battery of a police office and

33

aggravated assault. As such, the responsive verdicts allowed under La.Code Crim.P.

art. 804 for disarming a peace officer were not appropriate in the trial of this matter

and were, therefore, rejected by trial court. See State v. Moore, 38,444 (La.App. 2

Cir. 6/23/04), 877 So.2d 1027, writ denied, 04-2316 (La. 2/4/05), 893 So.2d 83.

Accordingly, we find that this assignment of error is without merit.

DISPOSITION

Defendant’s convictions, habitual offender adjudication, and sentences are

affirmed.

AFFIRMED.

34