State of Louisiana v. Gregory Dwayne Harrell

DO NOT PUBLISH
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-887

STATE OF LOUISIANA

VERSUS

GREGORY DWAYNE HARRELL

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 302,365
HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

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

J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D.
Saunders, and J. David Painter, Judges.

CONVICTIONS AFFIRMED; SENTENCE VACATED AND
REMANDED FOR RESENTENCING.

Gregory D. Harrell
Richwood Correctional Center
Unit 4
180 Pine Bayou Circle
Monroe, LA 71202
COUNSEL FOR DEFENDANT/APPELLANT:
Pro se

Edward K. Bauman
P.O. Box 1641
Lake Charles, LA 70602
COUNSEL FOR DEFENDANT/APPELLANT:
Gregory Dwayne Harrell

James C. Downs
Brian D. Cespiva
P.O. Box 1472
Alexandria, LA 71309
COUNSEL FOR APPELLEE:
State of Louisiana

PAINTER, Judge

Defendant, Gregory Dwayne Harrell, appeals his conviction on two

counts of simple burglary of a motor vehicle and his conviction on a habitual

offender bill as a fourth felony offender. For the following reasons, we

affirm the conviction, vacate the twenty year enhanced sentence, and remand

for resentencing.

FACTS

In March 2010, John Muder lived on Navaho Trail in Alexandria,

where he worked as a teacher and a coach. The subdivision he lived in,

Cherokee Village, was large and mostly consisted of two streets, Navaho

and Cherokee Lane. Mr. Muder testified as follows about the events of

March 25, 2010:

Well, it was about ten o‟clock at night and . . . my wife made
me take the trash out. So I went outside and I put the trash in
the trash can and about that time I heard like a metallic noise,
like a chink, you know, . . . and I looked and it was a bicycle
riding up a driveway across the street from me. And the house
is directly across the street from mine, some older people live
there. The man was about I think eighty-seven or eighty-eight .
. . . He was bedridden at the time and his wife was also around
the same age, . . . and so it was pretty much just her by herself
there and I knew she wasn‟t riding a bike in the middle of the
night . . . . So I went over across the street and there was
nobody back there, all there was [] a bike laying down. And so I
said, hey, you know, who is back here, said it twice, and then
the defendant came walking out from behind the shed they had
in their backyard. And I said, hey, man, what you doing back
here. And he said, I‟m just taking care of something.

Mr. Muder‟s conversation with Defendant was face-to-face and

occurred in the light cast by the carport fixture and the street lamps. When

Defendant refused to be more specific about his activities, and when Mr.

Muder retrieved his phone from his pocket, Defendant mounted his bike and

rode away. He passed within two feet of Mr. Muder. Defendant dropped a

1

purse, some cards, some checkbooks, and some other things at the end of the

driveway. Mr. Muder also noticed that Defendant was carrying two or three

women‟s wallets. It seemed to Mr. Muder that Defendant panicked and fled.

By the time the 911 operator answered, Defendant had been gone ten

seconds.

Mr. Muder recalled that Defendant was wearing all black: a black

skull cap, oversized headphones, a big fluffy black jacket, and some light

colored gloves. Mr. Muder thought Defendant‟s attire was odd because it

was not cool enough for the jacket and gloves. Mr. Muder himself was

wearing shorts and a tee shirt. Mr. Muder went behind the shed and

discovered identification, including social security cards, credit cards, and

library cards.

In compliance with the instructions given to him by law enforcement,

Mr. Muder waited in the driveway for an officer to arrive. As he waited, he

called Rob Antoon, who was a co-member of the neighborhood watch,

which had been formed because of frequent break-ins in the neighborhood.

Corporal Todd Beaman, a patrolman with the Alexandria City Police,

arrived five to seven minutes after Mr. Muder called to report the incident.

Mr. Muder then gave Officer Beaman a description of the person he had

seen, pointed out the items left behind by the man, and assured the officer

that he had touched nothing. Mr. Muder also described the bike, stating that

the only thing that stood out about it was the bullhorn shaped handlebars.

Mr. Muder stated that, once the officer told him the purse belonged to

Kristy Flynn, who also lived in the subdivision, he called Antoon again and

gave him the information. Mr. Antoon called John Flynn, Mrs. Flynn‟s

husband, and he met them in the driveway where the encounter occurred.
2

At the time of trial, Mrs. Flynn and her husband had lived on

Cherokee Lane in Alexandria for about a year and a half and in the Cherokee

Village Subdivision for eleven years. On March 25, 2010, Mrs. Flynn

arrived home from the grocery store around 8:30 or 9:00 p.m. She parked

her vehicle under the carport and brought her groceries inside. She left her

purse and some of her bags in the car. Her purse, which contained her wallet,

was on the front passenger-side seat.

Mrs. Flynn testified that she returned outside to retrieve the rest of her

bags after three to five minutes and discovered that her purse was missing.

Mrs. Flynn did not know Defendant, and she did not give him permission to

go into her car or to take her purse. When Mrs. Flynn called her husband to

tell him, she discovered that he already knew. He had been notified by Mr.

Antoon that Mr. Muder had found her purse. Between an hour and an hour

and a half later, an officer stopped by to return her purse; all of Mrs. Flynn‟s

belongings were returned with the bag. Mrs. Flynn paid approximately

ninety dollars altogether for her purse and wallet.

On cross-examination, Mrs. Flynn stated that there was no damage to

her vehicle, which had been left unlocked. She did not see the burglary take

place.

Corporal Todd Beaman, a patrolman with the Alexandria City Police,

testified that he responded to Mr. Muder‟s call. After collecting evidence

from Mr. Muder, he received a report that Megan Haworth‟s vehicle had

been burglarized. The Haworth burglary took place on Plantation Drive,

which was located between Mrs. Flynn‟s home and the place where officers

stopped Defendant. Both Ms. Haworth‟s neighborhood and Mr. Flynn‟s

street were connected to Prescott St.
3

Ms. Haworth lived on Plantation Drive in Alexandria, which was part

of the Plantation Acres Subdivision. It was next to the Cherokee Village

Subdivision. Ms. Haworth shared her home with her boyfriend and two sons.

On the afternoon of March 25, 2010, Ms. Haworth arrived home around 4:00

or 5:00 p.m. and parked her automobile in her driveway under the carport.

Ms. Haworth left her purse in her car. She went to retrieve it around 11:00

p.m. Ms. Haworth did not see her purse, so she went inside to ask her

boyfriend if he had moved it. He had, but he had then returned it to the

vehicle. When she and her boyfriend went outside to continue the search,

they noticed that one of the car doors had not been closed all the way. Ms.

Haworth reached for the door, but her boyfriend stopped her; he said

someone had opened the door. Her car was unlocked, and her boyfriend

indicated where he had left her purse.

Ms. Haworth said that her parents left her house around 9:00 p.m., so

the purse must have been taken between that time and 11:00 p.m., when she

went to retrieve the item. The vehicle door was not open when she walked

her parents to their car. Ms. Haworth‟s boyfriend failed to re-lock her car

when he returned her bag to it earlier in the evening. Ms. Haworth had given

no one other than her boyfriend permission to enter her car that evening. Ms.

Haworth did not know Defendant and did not give him permission to enter

her automobile or to take anything from her car.

Ms. Haworth recalled that her purse contained multiple items,

including a pink Samsung camera that had been a present from her

boyfriend. Other than the camera, Ms. Haworth had about eighty dollars in

cash in her purse. The value of everything taken amounted to approximately

$220.00.
4

Patrolman Andre Williams apprehended Defendant on England Drive.

An officer called Mr. Muder a couple of hours after the incident, told him

that they had apprehended Defendant, and asked Mr. Muder to identify him

at the scene where they stopped Defendant. Mr. Muder noticed that

Defendant was still wearing the same clothes as before. Mr. Muder

positively identified Defendant as the man from the encounter and had no

doubt about the identification. The bicycle with the unusual handlebars that

Defendant was riding at the time of his arrest was the same bike that Mr.

Muder saw Defendant with during their encounter. Defendant was found to

have with him a pink Samsung camera which was later identified as

belonging to Ms. Haworth, as well as headphones and gloves.

At trial, Mr. Mr. Muder pointed to Defendant and, again, identified

him as the man he met in his neighbor‟s yard and as the man whom he

identified for the police.

DISCUSSION

Error Patent Review

As required by La.Code Crim.P. art. 920, the court reviews all appeals

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

find two errors patent, and the court minutes of the habitual offender

sentencing require correction.

The court originally sentenced Defendant to ten years for his two

convictions of simple burglary. When questioned by the prosecutor for

clarification, the following exchange occurred:

BY MR. GIORDANO:

Your Honor, we have no objection to him –
this time running concurrent with any other time
he‟s serving. And just for clarification[,] I note we
5

gave him – the Court sentenced to ten years to the
Department of Corrections. Is that on each count
or - -

BY THE COURT:

No, I‟ll do them together.

BY MR. GIORDANO:

Okay. Ten and ten concurrent?
BY THE COURT:

Yes. Ten and ten concurrent on the two
counts.

Later, in restating the sentence for the court staff, the judge stated, “he

is sentenced to the Department of Corrections for a period of ten years. Two

charges will run concurrent.”

The State filed a habitual offender bill which listed Defendant‟s two

recent convictions for simple burglary as well as Defendant‟s prior

convictions. At the conclusion of the bill, the State requested that Defendant

be “sentenced as a fourth felony offender in accordance with the provisions

of LSA-R.S. 15:529.1A(1)(b) and sentenced to a term of imprisonment of not

less than twenty (20) years and not more than life.”

At the close of the habitual offender proceeding, the prosecutor asked

that the “previous sentence in this docket number be vacated and a new

sentence imposed as him being declared as a – him being Mr. Harrell

declared as a fourth time felony offender.” The court, in finding Defendant a

fourth offender, stated: “[a]s a result of that I am going to vacate his

previous sentence that was imposed and [impose] a new sentence under that

habitual offender law.” The judge later vacated the previous sentence and

sentenced Defendant to twenty-five years in the Department of Corrections.

At a subsequent point in the proceeding, the court reduced the sentence to
6

twenty years. The following exchange further indicates that a single habitual

offender sentence was imposed:

BY THE COURT:

And it will run concurrent. Or just - what do
y‟all - -

BY MR. GIORDANO:

It‟s my understanding, Your Honor, that it
should just be one habitual offender conviction.

The court‟s Written Reasons on Habitual Offender Bill again

confirmed that a single twenty-year sentence was imposed for Defendant‟s

fourth felony offender status.

The trial court erred in failing to specify which of Defendant‟s two

sentences it intended to enhance, or whether it intended to enhance both. In

State v. Webster, 95-605, p. 9 (La.App. 3 Cir. 11/2/95), 664 So.2d 624, 630,

a case in which the defendant was convicted of four counts of armed

robbery, this court addressed a raised sentencing issue similar to the one in

the present case, finding that:

the trial court erred in that the record does not reveal which of
defendant‟s four armed robbery convictions was being
enhanced. Additionally, the trial court should have imposed a
separate sentence on each of the three remaining convictions.
Therefore, defendant‟s sentence is indeterminate as he was
convicted of four counts of armed robbery and only a single
sentence was imposed. See State v. Bessonette, 574 So.2d 1305
(La.App. 3 Cir.1991); La.Code Crim.P. art. 879. Accordingly,
defendant‟s sentence will be vacated and the case remanded to
the trial court for clarification as to which count is being
enhanced and for imposition of separate sentences on the
remaining three counts. See State v. Parker, 593 So.2d 414
(La.App. 1 Cir.1991).

Additionally, it is unclear whether the court vacated only one or both

of Defendant‟s original ten-year sentences. Accordingly, Defendant‟s

habitual offender sentence of twenty years is vacated and the case remanded
7

for resentencing with the trial court being instructed to specify which of

Defendant‟s two sentences is enhanced or whether both sentences are

enhanced. The trial court should likewise specify which original sentence or

sentences were vacated.

Sufficiency of the Evidence

Defendant asserts that: “The trial court erred in finding Gregory

Harrell guilty of two counts of simple burglary of a motor vehicle.” The

defense contends that the State failed to prove that Defendant entered the

cars because Mrs. Flynn only testified that her purse was removed from her

car.

The defense posits that the prosecution also failed to prove its case in

reference to Ms. Haworth. Ms. Haworth‟s camera was in her purse, which

was left in her car, and the camera was found in Defendant‟s possession.

However, the purse was never recovered. Additionally, the witness who

notified the police did not see Defendant in any of the vehicles. The witness

only saw Defendant with the items removed from the automobiles.

Defendant argues, therefore, that his convictions and sentences should be

reversed.

In his pro se appellant‟s brief, Defendant also “contends that the

evidence adduced at trial failed to prove beyond a reasonable doubt the

requisite elements of simple burglary.” Like his appellate attorney,

Defendant argues that this assertion has merit because the State failed to call

any witness who had seen Defendant entering or exiting one of the

burglarized vehicles. Further, the prosecution failed to present any

paperwork or photographic proof verifying Ms. Haworth‟s testimony that

the camera recovered from Defendant‟s possession belonged to her.
8

Defendant further complains that neither Mrs. Flynn, Ms. Haworth, nor Mr.

Muder testified as eyewitnesses. None of the witnesses saw Defendant enter

or exit the automobiles; therefore, they did not see Defendant either

complete or attempt to complete the act of simple burglary. Defendant urges

that a more appropriate conviction would have been for possessing stolen

goods. Based on these contentions, Defendant asks this court to overturn his

convictions.

The Louisiana Supreme Court has discussed the standard of review

for evaluating the sufficiency of the evidence on appeal:

The standard of appellate review for a sufficiency of the
evidence claim 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,
319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A
determination of the weight of evidence is a question of fact,
resting solely with the trier of fact who may accept or reject, in
whole or in part, the testimony of any witnesses. A reviewing
court may impinge on the factfinding function of the jury only
to the extent necessary to assure the Jackson standard of
review. It is not the function of an appellate court to assess
credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86

(citations omitted).

“Simple burglary is the unauthorized entering of any . . . vehicle, . . .

with the intent to commit a felony or any theft therein, other than as set forth

in R.S. 14:60.” La.R.S. 14:62(A). “Theft is the . . . taking of anything of

value which belongs to another, . . . without the consent of the other to the . .

. taking, . . . . An intent to deprive the other permanently of whatever may be

the subject of the . . . taking is essential.” La.R.S. 14:67(A).

The evidence presented at trial shows that Mrs. Flynn and Ms.

Haworth‟s vehicles were entered into without their permission on March 25,
9

2010. The person who entered their vehicles without permission took some

of their belongings without their permission. The belongings consisted of

items of value, which included purses, money, and a digital camera.

Defendant was seen in the neighborhood around the time of the burglaries

and found to be in possession of the items taken during the burglaries within

a short time frame after the burglaries were discovered.

In factually similar cases, the courts of this state have found that

where a suspect is found in possession of stolen goods, it is sufficient to

sustain a simple burglary conviction. State v. Tassin 08-367 (La.App. 3 Cir.

11/5/08), 997 So.2d 750; State v. Jacobs, 558 So.2d 1220 (La.App. 1 Cir.),

writ denied, 564 So.2d 319 (La.1990).

When the evidence presented at the trial herein is viewed in the light

most favorable to the prosecution, any rational trier of fact could have found

the essential elements of both simple burglary charges proven beyond a

reasonable doubt.

Sanity Commission

In his first counsel-filed assignment of error, Defendant claims that

“[t]he trial court erred in denying defense counsel‟s request for appointment

of a Sanity Commission.” In his third pro se assignment of error, Defendant

claims that “the Judge abused her discretion for not granting Petitioner[„]s

request for sanity commission examination . . . Therefore Petitioner contends

after the Judge[„]s verdict at sentencing the trial Judge „ordered‟ that the

Petitioner be evaluated.” In his fourth pro se assignment of error, Defendant

contends that he “was examined by the Federal Government doctors Social

Security Administrative doctor in between Jan, 2010 and March, 2010 and

was determined disabled mentally, which could have lead [sic] to such
10

outburst and actions at trial.” Defendant avers that the trial court‟s denial of

the sanity commission constituted an abuse of discretion and that, as a result,

this court should vacate Defendant‟s convictions and sentences, remand the

matter to the trial court, and order the trial court to have him examined by a

sanity commission.

“A criminal defendant has a constitutional right not to be
tried while legally incompetent.” State v. Carmouche, 01-0405,
p. 29 (La.05/14/02), 872 So.2d 1020, 1041. There is a legal
presumption that the defendant is sane and competent to
proceed. State v. Carmouche, 01-0405 at 30, 872 So.2d at 1041.
The legal presumption that the defendant is sane and
responsible for his actions may be destroyed by rebutting
evidence. LSA-R.S. 15:432. See also, State v. Carmouche, 01-
0405 at 30, 872 So.2d at 1041, n. 9.

The appointment of a sanity commission is not a
perfunctory matter, a ministerial duty of a trial court, or a
matter of right. State v. Carmouche, 01-0405 at 30, 872 So.2d
at 1041-42. The mental incapacity of the defendant to proceed
may be raised at any time by the defense, the district attorney,
or the court. LSA-C.Cr.P. art. 642; State v. Williams, 03-942, p.
6 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, 1008, writ denied,
04-450 (La.6/25/04), 876 So.2d 832. Any question regarding a
defendant‟s mental capacity must be deemed by the court to be
bona fide and in good faith before the court considers if there
are reasonable grounds to doubt capacity. State ex rel. Seals v.
State, 00-2738, p. 6 (La.10/25/02), 831 So.2d 828, 833.

The trial court has discretion in deciding whether to order
a sanity commission to inquire into the defendant‟s present
mental capacity to proceed. State v. Fish, 99-1280, p. 4
(La.App. 5 Cir. 4/12/00), 759 So.2d 937, 939. A defendant‟s
mental capacity to proceed is determined by the procedure set
forth in LSA-C.Cr.P. art. 647, which states:

The issue of the defendant‟s mental capacity to proceed
shall be determined by the court in a contradictory
hearing. The report of the sanity commission is
admissible in evidence at the hearing, and members of
the sanity commission may be called as witnesses by the
court, the defense, or the district attorney. Regardless of
who calls them as witnesses, the members of the
commission are subject to cross-examination by the
defense, by the district attorney, and by the court. Other
evidence pertaining to the defendant‟s mental capacity to

11

proceed may be introduced at the hearing by the defense
and by the district attorney.

A trial court‟s determination on a defendant‟s mental
capacity to proceed is entitled to great weight on appellate
review, and will not be overturned absent an abuse of that
discretion. State v. Fish, 99-1280 at 4, 759 So.2d at 939.

State v. Robinson, 09-371, pp. 6-7 (La.App. 5 Cir. . 3/23/10), 39 So.3d 692,

696-97.

Defense counsel filed a motion for appointment of a sanity

commission on November 16, 2010. In it, he alleged that there was good

reason to believe that Defendant suffered from a mental disease or defect

that materially limited his mental capacity to understand the proceedings

against him or to assist in his defense. Further, defense counsel alleged that

Defendant‟s mental condition rendered him unable to distinguish right from

wrong and that he was insane at the time of the offense. Defense counsel

asserted that his belief was based on Defendant‟s adversarial relationship

with his prior attorney, visits with Defendant, his belief that Defendant did

not understand the charges, Defendant‟s outburst in court on November 15,

2010, and Defendant‟s belief that everyone was trying to “railroad” him.

On the date the motion was filed, defense counsel informed the trial

court that, after discussions with Defendant and his family, he learned that

Defendant had been under the care of a psychiatrist for paranoid

schizophrenia in his “younger years.” Defense counsel additionally stated

that Defendant had received some psychological treatment, “has been on”

medication, and received social security disability benefits as a result of his

condition. Defense counsel further informed the trial court that Defendant‟s

relationship with his previous attorney had been fraught with problems,

noted that Defendant had an outburst in court the previous day, stated that he
12

was not convinced that Defendant fully understood or appreciated what he

was charged with and the sentence he could receive, and questioned

Defendant‟s ability to assist in his defense. The State opposed the motion,

pointing out that Defendant had assisted counsel during jury selection and

that there had been no medical evidence introduced regarding any type of

insanity. After hearing the argument of counsel, the trial court noted that a

diagnosis of mental illness would not necessarily be an impediment to his

ability to assist counsel. The trial court then denied the motion.

On December 17, 2010, Defendant informed the trial court that he

wished to represent himself. During that discussion, defense counsel re-

urged his motion to appoint a sanity commission. At that time, the trial court

asked Defendant if he suffered from a mental illness. Defendant stated that

he was mentally ill from being in jail but that he was not under a doctor‟s

care. He stated that he had taken medication for depression and suicide

attempts but that he had discontinued the medication on his own.

Defendant asserts that the trial court‟s abuse of discretion is evidenced

by Defendant‟s allegations that he had been the victim of racism and threats

and also by Defendant‟s belief that his trial attorney was involved in a plot

to convict him. Defendant contends that there were additional indicators in

the record that a sanity commission should have been granted, including that

he had been hospitalized for depression and suicide attempts, that his

ramblings in court indicated that he did not understand the consequences of

the proceedings, and related matters.

Defendant further argues that this claim is supported by the trial

court‟s own actions after sentencing. Defendant alleges that, following

13

imposition of sentence, the trial court ordered him to be evaluated.

Defendant claims that the evaluation was never performed.

The fifth circuit noted, in State v. Williams, 02-1016 (La.App. 5 Cir.

2/25/03), 841 So.2d 936, writ denied, 03-2205 (La. 8/20/04), 882 So.2d 571,

that defense counsel failed to introduce evidence in support of his allegations

regarding the need for a sanity commission, did not subpoena or call

witnesses to testify regarding the defendant‟s alleged incompetency, and

failed to introduce medical records to support his contentions. The fifth

circuit found that the trial court did not err in denying the motion to appoint

sanity commission under those circumstances. See also State v. Normand,

04-840 (La.App. 3 Cir. 12/15/04), 896 So.2d 98, writ denied, 05-231 (La.

5/6/05), 901 So.2d 1094.

In its decision in Williams, 841 So.2d 936, the fifth circuit cited State

v. Wilkerson, 403 So.2d 652 (La.1981). In Wilkerson, the supreme court

stated the following regarding mental incapacity to proceed: “[w]here the

issue is presented by bare allegations without supporting evidence, the

exercise of discretion conferred on the trial judge will not be disturbed.” Id.

at 658 (citations omitted).

When the hearing on the written motion to appoint a sanity

commission was held in the case at bar, defense counsel presented no

witnesses or medical records to support his claim that Defendant suffered

from a mental disease or defect which materially limited his mental capacity

to understand the proceedings against him or to assist in his defense. It was

merely alleged that Defendant suffered from schizophrenia. When the issue

was re-urged, the trial court questioned Defendant regarding his capacity.

No other witnesses were called to support the motion, and no medical
14

records were submitted to support Defendant‟s claims that he had taken

medication for depression and suicide attempts and had been hospitalized.

Thus, we cannot say the trial court abused its discretion in failing to appoint

a sanity commission.

At the original sentencing hearing, the trial court sentenced Defendant

and stated that it would ask the department to address any mental or

substance abuse concerns. After Defendant was sentenced as a habitual

offender, the trial court recommended that Defendant “get some mental

health treatment.” The trial court subsequently sentenced Defendant to

twenty-five years with the “recommendation of mental health treatment.”

This order for mental health evaluation does not signal that Defendant was

incapable of understanding the proceedings against him or assisting his

counsel.

Defendant asserts that the need for appointment of a sanity

commission was supported by the Social Security Administration

determination in early 2010 that he was disabled. At the hearing on the

written motion to appoint a sanity commission, defense counsel informed the

trial court that Defendant received disability benefits as a result of his

condition. That allegation was not supported by any documentation or

testimony at the hearing on the motion. Further, the letter from the Social

Security Administration attached to Defendant‟s pro se brief as Exhibit 2

will not be considered by this court, as it was not filed in the trial court. See

Uniform Rules–Courts of Appeal, Rule 1-3.

Therefore, we find no error in the trial court‟s decision not to appoint

a sanity commission.

15

Self Representation

Defendant asserts that “[t]he trial court erred in allowing Gregory

Harrell to represent himself at trial and the habitual offender hearing.” The

supreme court in State v. Bell, 09-199, pp. 13-27 (La. 11/30/10), 53 So.3d

437, 445-54, cert. denied, ___ U.S. ___, 131 S.Ct. 3035 (2011) (citations

omitted) addressed the issue of self-representation by defendants with

mental illnesses or defects:

The Sixth Amendment expressly provides that an accused in a
criminal trial has the right to the assistance of counsel.
However, the Supreme Court in Faretta v. California, held the
Sixth Amendment also “implies a right of self-representation.”
422 U.S. 806, 822, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562
(1975)[.] The Faretta Court noted that the self-represented
defendant can not later claim he was denied effective assistance
by his own representation. Id. at 834, 95 S.Ct. at 2541 n. 46.
Certain limits have been put on the right of self-representation
due to the tension between it and the express right to the
assistance of counsel.

....

. . . [T]he question presented is whether the waiver was valid
under existing state law, which involves determining whether
the defendant was competent to waive counsel and whether he
did so knowingly and intelligently with full understanding of
the risks and possible consequences. “The determination of
whether there has been an intelligent waiver of right to counsel
must depend, in each case, upon the particular facts and
circumstances surrounding that case, including the background,
experience, and conduct of the accused.” Trial courts should
inquire into the accused‟s age, education, and mental condition
in deciding, on the totality of the circumstances, whether the
accused understands the significance of the waiver. Further, a
defendant must be made aware of the dangers and
disadvantages of self-representation so that the record
demonstrates “he knows what he is doing and his choice is
made with his eyes open.” In other words, a defendant must
know the consequences of his action. The assertion of the right
must also be clear and unequivocal.

Defendant contends that the trial court failed to ask about Defendant‟s

age, level of education, and whether Defendant had any legal training.

16

Instead, the district court noted that Defendant assisted in choosing his jury,

made nice gestures to the jurors, and had great eye contact. The defense

points out that the trial court failed to mention the nature of the charges

against Defendant and the applicable penalty range during the dangers and

disadvantages colloquy. The district court dismissed appointed counsel over

the attorney‟s strenuous objections and ordered him to assist Defendant in

his self-representation. The trial court further denied Defendant‟s motion for

a continuance.

The defense further points out that, when Defendant refused

assistance of counsel in reference to his habitual offender bill, the trial court

conducted a dangers and disadvantages hearing but failed to inquire into

Defendant‟s age, education, and mental condition. Additionally, the defense

asserts that the district court failed to advise Defendant of the consequences

of being found a habitual offender. The defense urges that Defendant was

prejudiced because he failed to file a timely objection to the habitual

offender bill. The defense adds that Defendant expressed a desire for a life

sentence and complains that the sentencing court continued with the hearing

despite the objection raised by the attorney aiding Defendant. The attorney

informed the court that Defendant had “some emotional and mental health

issues that keep him from understanding the gravity of the proceedings.”

Defendant asserts, therefore, that the trial court failed to make the

inquiries necessary to determine whether Defendant should be allowed to

represent himself. The defense concludes that this is tantamount to a denial

of the right to assistance of counsel and meant that Defendant‟s waiver of

this right was neither knowing nor intelligent. The defense urges, therefore,

that this court should reverse Defendant‟s convictions and sentences.
17

The record shows that Defendant wanted to actively participate in and

ultimately take over his defense. In the pretrial setting, Defendant repeatedly

filed pro se motions. On the first day of trial, November 17, 2010, Defendant

moved to represent himself at trial. The trial court‟s questioning of

Defendant at that juncture shows that the trial court made efforts to ensure

that Defendant was fully cognizant of the repercussions of his decision.

The record shows that, during the trial, Michael Jeansonne, who had

previously represented Defendant and was ordered to assist him in self-

representation, had to leave because of a family medical appointment. At

that time, Defendant asked for another attorney to assist him at trial; when

he maintained that he wanted to represent himself, the district court did not

call another attorney to replace Mr. Jeansonne. However, after the State

rested its case, Defendant asked if he could consult with an attorney before

presenting his defense, and the trial court granted Defendant‟s request by

sending someone to search the other courtrooms for another indigent

defender. Defendant then had an opportunity to ask that attorney, J. Marc

Lampert, questions, and Defendant, thereafter, assured the district court that

Mr. Lampert, who was familiar with the case because he had been the

attorney originally assigned to represent Defendant, had satisfactorily

addressed Defendant‟s concerns. At the trial court‟s request, Mr. Lampert

stayed throughout the remainder of trial for the purpose of being available to

Defendant in the capacity of a consultant. Defendant ultimately chose to

refrain from testifying at trial; therefore, the State did not get to elicit prior

crimes evidence.

Prior to trial, Defendant demonstrated his literacy, his grasp of legal

issues, and his desire to act on his own behalf by repeatedly filing pro se
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motions. At voir dire, Defendant demonstrated his ability to assist in his

defense by making informed choices concerning which potential jurors

should serve on the jury. At the dangers and disadvantages hearing,

Defendant clearly and unequivocally maintained his desire to represent

himself at trial over the express objections of his appointed attorney and

against the advice of the district court. Defendant showed that he was

prepared for trial when he revealed that he already knew what the witnesses

were going to say and that he already had questions prepared for those

witnesses. The district court took care to ensure that Defendant understood

his right against self-incrimination and the consequences of waiving that

right. Defendant showed his understanding of this right by not testifying at

trial. The trial court also questioned Defendant about his history of mental

illness, about any medications Defendant may have been taking, and about

any current treatment Defendant may have been undergoing for mental

illness. Nothing in Defendant‟s responses revealed a defect that would bar

Defendant from being able to represent himself. Thus, Defendant

demonstrated that his waiver of his right to counsel was knowing and

voluntary.

Furthermore, as discussed in Bell, the fact that, due to his lack of legal

training, Defendant may have made mistakes a licensed attorney would have

avoided has no bearing on whether his decision to represent himself was

knowing and voluntary because Defendant waived any claim of ineffective

assistance of counsel when he asserted his right to self-representation.

The defense also asserts that the trial court erred in allowing

Defendant to represent himself at his habitual offender hearing. The defense

complains that the dangers and disadvantages colloquy was insufficient and
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that Defendant should have been prohibited from self-representation because

he expressed a desire for life imprisonment. Though the defense contends

that Defendant was prejudiced by the failure to timely object to the habitual

offender bill, it fails to either argue or demonstrate that there was a valid

objection thereto.

On March 2, 2011, the sentencing court conducted a second dangers

and disadvantages hearing in reference to Defendant‟s motion to represent

himself for the habitual offender proceeding. The transcript of that hearing

shows that Defendant clearly expressed his desire to represent himself even

after both his attorney and the sentencing court advised him of the dangers

and difficulties that would arise from the decision.

Though the defense asserts that Defendant was unfairly denied his

right to assistance of counsel, examination of the record shows that Harold

Murry acted, at a minimum, as co-counsel for Defendant even though he

was no longer assigned to the case. The record shows that Mr. Murry was

present at the habitual offender hearing, that Mr. Murry continued to interact

with the court on Defendant‟s behalf, that Mr. Murry explained things to

Defendant that Defendant did not understand, that Mr. Murry questioned and

cross-examined the State‟s sole witness on Defendant‟s behalf, that Mr.

Murry also made objections to the State‟s evidence, that Mr. Murry advised

Defendant as to the wisdom of testifying at the hearing, and that Mr. Murry

successfully made an oral motion for reconsideration of the habitual

offender penalty. Therefore, the defense‟s assertion is without merit;

Defendant was effectively represented by counsel at the habitual offender

proceeding.

20

The defense complains that Defendant showed his lack of capacity by

stating that he wished to receive life imprisonment. Examination of the

relevant record passages shows that Defendant was requesting life

imprisonment so that he could go to a “real” prison. He wanted to go to

either Angola or Hunt Correctional Facility because his prior incarcerations

at “satellite” facilities did not result in his rehabilitation. It appears that

Defendant was expressing his desire for a penalty harsh enough to deter him

from committing future criminal acts and for assignment to a penal facility

that would be conducive to the rehabilitation of his criminal proclivities.

Moreover, the district court did not impose life imprisonment. Hence,

Defendant‟s request for life imprisonment, for the reasons expressed, does

not show that Defendant was incapable of representing himself. Moreover,

as Defendant received the minimum possible sentence, Defendant was not

prejudiced by his statement.

Additionally, even though the defense contends that Defendant did not

understand the consequences of being adjudicated a habitual offender,

Defendant clearly indicated his understanding that the penalty he would

receive upon being adjudicated a fourth felony offender would range from

twenty years to life imprisonment.

Accordingly, we find no error in the trial court‟s decision to allow

Defendant to represent himself.

Sufficiency of the Evidence on Multiple Offender Bill

Defendant argues that the State “failed to prove beyond a reasonable

[doubt] that [he] was a fourth time felony offender.” Defendant alleges that

the State‟s exhibits fail to show he was represented by counsel at his prior

guilty pleas or that he was advised of and waived his right against self-
21

incrimination, his right to trial by jury, and his right to confront his accusers.

Based on this assertion, Defendant asks this court to vacate his habitual

offender adjudication.

The State filed a multiple offender bill on December 7, 2010, alleging

Defendant was a fourth felony offender. On March 2, 2011, Defendant filed

a pro se Motion to Quash Habitual Offender Bill. Therein, he stated that the

District Attorney filed the bill out of vengeance and trickery. He alleged that

had he been afforded proper representation by an attorney and “they” had

moved for appointment of a sanity commission, he would not have been

convicted. He also alleged that the State improperly classified him as a four

time offender when, in fact, he was a two time offender. He further alleged

that his sentence was grossly out of proportion to the severity of the crime.

The trial court denied the motion without a hearing on March 3, 2011.

Defendant was subsequently adjudicated a fourth felony offender and

sentenced to twenty years.

At the habitual offender hearing, Defendant objected to the

introduction of State‟s Exhibits 1, 2, 3, and 4. He did not set forth a basis for

that objection and further failed to object to the validity of his prior

convictions.

In State v. Lemon, 08-619, p. 5 (La.App. 5 Cir. 12/16/08), 3 So.3d 20,

24, the fifth circuit sated: “[a] defendant must make a contemporaneous oral

objection or file a written response to a habitual offender bill in order to

preserve for appeal the issue of sufficiency of proof of a prior conviction

based on a guilty plea.” In State v. Lewis, 43,402, p. 12 (La.App. 2 Cir.

8/13/08), 990 So.2d 109, 117, the second circuit found: “[d]efendant did not

22

make an objection under La. R.S. 15:529.1(D)(1)(b) to the validity of his

prior convictions and is barred from raising that issue now.”

Defendant failed to attack the validity of his prior guilty pleas in his

Motion to Quash and did not object to the validity of those convictions at the

habitual offender hearing. Therefore, he is barred from attacking the

sufficiency of those convictions on appeal. Accordingly, we find no error in

the finding that Defendant was a fourth felony offender.

CONCLUSION

Defendant‟s convictions are affirmed. Defendant‟s habitual offender

sentence of twenty years is vacated, and the case remanded for resentencing

with the instruction to specify which one of Defendant‟s two sentences is

being enhanced or whether both sentences are being enhanced. The trial

court is also to specify which original sentence or sentences are being

vacated.

CONVICTIONS AFFIRMED; SENTENCE VACATED AND
REMANDED FOR RESENTENCING.

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