State of Louisiana v. Ordesto Marando Toussaint

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1404

STATE OF LOUISIANA

VERSUS

ORDESTO MARANDO TOUSSAINT

**********

APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 84199-FA
HONORABLE JOHN LARRY VIDRINE, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED.

Mark O. Foster
Louisiana Appellate Project
1214 Ridge Vista Court
Lawrenceville, Georgia 30043
(318) 572-5693
COUNSEL FOR DEFENDANT/APPELLANT:
Ordesto Marando Toussaint

Trent Brignac
District Attorney, Thirteenth Judicial District
Julhelene E. Jackson, Assistant District Attorney
Post Office Drawer 780
Ville Platte, Louisiana 70586
(337) 363-3438
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Ordesto Marando Toussaint, was convicted

by a jury of second degree murder, simple arson with damages over $500.00, and

theft of a motor vehicle over $500.00. He has appealed, alleging trial court error in

denying his motion to suppress and in not considering his trial objections

concerning his defense counsel. For the following reasons, we affirm Defendant’s

conviction and sentence for second degree murder, reverse his arson and theft

convictions, vacate his arson and theft sentences, and remand the matter for further

proceedings.

FACTS AND PROCEDURAL HISTORY

On May 11, 2010, Defendant killed Elizabeth Fontenot in Evangeline Parish

by striking her in the head several times with a cinder block and then took the

vehicle she had been operating and set it on fire. On July 6, 2010, Defendant was

charged by grand jury indictment with second degree murder, a violation of

La.R.S. 14:30.1; simple arson, a violation of La.R.S. 14:52; and, theft of a motor

vehicle, a violation of La.R.S. 14:67.26. Defendant entered a plea of not guilty on

all charges on July 8, 2010, and subsequently filed a motion to suppress the

statements given by him to the investigating officers. The trial court denied

Defendant’s motion to suppress, finding the statements to have been freely and

voluntarily made and admissible at trial.

On April 8, 2011, a jury found Defendant guilty of second degree murder,

simple arson with damages over $500.00, and theft of a motor vehicle over

$500.00. Defendant was sentenced on June 16, 2011, as follows: 1) second degree

murder—life without benefit of parole, probation, or suspension of sentence;

2) simple arson—ten years at hard labor to run concurrently with his theft of a

motor vehicle conviction and consecutively to his second degree murder

conviction; and, 3) theft of a motor vehicle—five years at hard labor to run

concurrently with his simple arson conviction and consecutively to his second

degree murder sentence.

Defendant appealed his convictions and sentences and is now before this

court asserting two assignments of error. He contends that the trial court erred in

denying his motion to suppress and in not considering his trial objections

concerning defense counsel. For the reasons that follow, we affirm the trial court’s

denial of Defendant’s motion to suppress and find that Defendant’s claims

regarding defense counsel lack merit.

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 an

actionable error patent in that the grand jury indictment is defective as to the

charges of arson and theft.

The bill of indictment provides, in pertinent part:

IN HERE, the Grand Jurors of the Thirteenth Judicial District, State of
Louisiana, on the 6th day of July, 2010, duly empanelled and sworn,
in and for the body of the Parish of EVANGELINE in the name and
by the authority of the said State, upon their Oath, charges that, in the
Parish of EVANGELINE, aforesaid, and within the jurisdiction of the
Thirteenth Judicial District Court of Louisiana, then and there being,
committed the offense(s) of:

ORDESTO MARANDO TOUSSAINT committed the offenses(s) of

Count #1: Second Degree Murder La.R.S. 14:30.1

Count #2: Simple Arson La.R.S. 14:52

Count #3: Theft of Motor Vehicle La.R.S. 14:67.26

in the Parish of Evangeline in that:

Count #1: Ordesto Toussaint, on or about May 11, 2010, committed
[S]econd [D]egree [M]urder of Elizabeth Fontenot

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Count #2: Ordesto Toussaint, on or about May 11, 2010, committed
the offense of Simple Arson and did intentionally damage by any
explosive substance or the setting fire to any property of another,
without the consent of the owner

Count #3: Ordesto Toussaint, on or about May 11, 2010, committed
the offense of Theft of a Motor Vehicle by the taking of a motor
vehicle, which belongs to another, either without the owner’s consent
or by means of fraudulent conduct, practices, or representations, with
the intention to permanently deprive the owner of the motor vehicle.

As to the arson and theft charges, La.Code Crim.P. art. 470 states that the

value need not be alleged in the indictment unless it is essential to the charge or to

determine the grade of the offense. While La.Code Crim.P. art. 470 does not

require that an indictment include a specific monetary value, the allegations in the

indictment must be sufficient to determine the grade of the offense.

Louisiana Revised Statutes 14:52 sets forth the penalty for simple arson and

provides in pertinent part:

B. Whoever commits the crime of simple arson, where the
damage done amounts to five hundred dollars or more, shall be fined
not more than fifteen thousand dollars and imprisoned at hard labor
for not less than two years nor more than fifteen years.

C. Where the damage is less than five hundred dollars, the
offender shall be fined not more than twenty-five hundred dollars or
imprisoned with or without hard labor for not more than five years, or
both.

Louisiana Revised Statutes 14:67.26 sets forth the penalty for theft of motor

vehicles and provides in pertinent part:

C. (1) Whoever commits the crime of theft of a motor vehicle
when the misappropriation or taking amounts to a sum of one
thousand five hundred dollars or more shall be imprisoned, with or
without hard labor, for not more than ten years, or may be fined not
more than three thousand dollars, or both.

(2) Whoever commits the crime of theft of a motor vehicle
when the misappropriation or taking amounts to a sum of five hundred
dollars or more but less than one thousand five hundred dollars shall
be imprisoned, with or without hard labor, for not more than five
years, or may be fined not more than two thousand dollars, or both.

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(3) Whoever commits the crime of theft of a motor vehicle
when the misappropriation or taking amounts to a sum of less than
five hundred dollars shall be imprisoned for not more than six months,
or may be fined not more than one thousand dollars, or both.

Pursuant to La.Code Crim.P. art. 470, an essential element to be included in

the charging instrument for both simple arson and theft of a motor vehicle is the

value and/or grade of the offense. La.Code Crim.P. art. 465; State v. Guidry,

93-1091 (La.App. 1 Cir. 4/8/94), 635 So.2d 731, writ denied, 94-960 (La. 7/1/94),

639 So.2d 1163; State v. Young, 469 So.2d 1014 (La.App. 1 Cir. 1985). In this

case, the State failed to do so.

In State v. Breaux, 96-1516 (La.App. 3 Cir. 4/30/97), 693 So.2d 326, the

defendant was charged by bill of information with aggravated criminal damage to

property and convicted as charged. On appeal, this court recognized as an error

patent that the bill of information did not state the amount of the damage allegedly

inflicted by the defendant to the property. This court held in pertinent part:

An allegation of value is essential to a charge of aggravated or simple
criminal damage to property. Without this allegation the bill of
information is invalid. La.Code Crim.P. art. 470; State v. Bass, 509
So.2d 176 (La.App. 1 Cir.1987). Accordingly, defendant’s conviction
must be reversed, and his sentence set aside.

Id. at 327.

In State v. Olivier, 03-1589 (La.App. 3 Cir. 6/16/04), 879 So.2d 286, the

defendant appealed his conviction and sentence for misapplication of payments by

a contractor, in violation of La.R.S. 14:202. This court recognized as an error

patent the state’s failure to include the value and/or grade of offense in the

charging instrument. This court held in pertinent part:

There is a defect in the bill of information by which Defendant
was charged. La.R.S. 14:202 provides, in pertinent part:

A. No person, contractor, subcontractor, or agent
of a contractor or subcontractor, who has received money
on account of a contract for the construction, erection, or

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repair of a building, structure, or other improvement,
including contracts and mortgages for interim financing,
shall knowingly fail to apply the money received as
necessary to settle claims for material and labor due for
the construction or under the contract.

The penalties for a violation of La.R.S. 14:202 are as follows:

B. When the amount misapplied is one thousand
dollars or less, whoever violates the provisions of this
Section shall be fined not less than one hundred dollars
nor more than five hundred dollars, or imprisoned for not
less than ninety days nor more than six months, or both.

C. When the amount misapplied is greater than one
thousand dollars, whoever violates this Section shall be
fined not less than one hundred dollars nor more than
five hundred dollars, or imprisoned with or without hard
labor for not less than ninety days nor more than six
months, or both, for each one thousand dollars in
misapplied funds, provided that the aggregate
imprisonment shall not exceed five years.

Accordingly, the penalty for a violation of La.R.S. 14:202 is
determined based on the total amount misapplied. The bill of
information in the case at bar does not specify whether the Defendant
was charged under section (B) or (C) of La.R.S. 14:202. Although
value was discussed at trial and the jury returned a verdict finding a
specific value, the bill of information did not properly charge the
grade of the offense.

Pursuant to La.Code Crim.P. art. 470, “[v]alue, price, or
amount of damage need not be alleged in the indictment, unless such
allegation is essential to charge or determine the grade of the offense.”
While La.Code Crim.P. art. 470 does not require that an indictment
include a specific monetary value, the allegations in the indictment
must be sufficient to determine the grade of the offense. Also, the
amount misapplied is determinative of whether a defendant is entitled
to a jury trial and whether this court has appellate jurisdiction or only
supervisory jurisdiction over the matter. See State v. Bass, 509 So.2d
176 (La.App. 1 Cir.1987).

In State v. Breaux, 96-1516 (La.App. 3 Cir. 4/30/97), 693 So.2d
326, the defendant was charged by bill of information with aggravated
criminal damage to property and was found guilty of simple criminal
damage to property where the damage amounted to five hundred
dollars or more but less than fifty thousand dollars. The bill of
information failed to set forth the amount of damage inflicted by the
defendant. This court held the bill was invalid and reversed the
defendant’s conviction. The matter was remanded to the trial court
for further proceedings and the state was allowed to amend the bill of

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information to properly charge an offense. See also State v. Whatley,
03-655 (La.App. 3 Cir. 11/5/03), 858 So.2d 751. In State in the
Interest of A.P., 02-1030 (La.App. 3 Cir. 2/5/03), 838 So.2d 97, the
juvenile was charged with theft of goods. The petition failed to
establish the value of the items taken and the record contained no
evidence of the value of the items although the testimony revealed the
items at issue were two CDs. This court held that failure to set forth
the value in the bill of information caused it to be invalid and reversed
the adjudication of delinquency and order of commitment, discharged
the defendant, and dismissed the state’s petition.

The above cited cases involve theft and simple criminal damage
to property; however, they can be analogized to the present offense
since all are graded offenses. Based on La.Code Crim.P. art. 470 and
the above cited cases, we find the bill of information in the case at bar
is invalid. Therefore, Defendant’s conviction is reversed and his
sentence set aside. The case is remanded to allow the State the
opportunity to amend the bill to properly charge an offense. See
Breaux, 693 So.2d 326; Whatley, 858 So.2d 751; Bass, 509 So.2d
176.

Id. at 287-88.

In accordance with Olivier and its progeny, we find that the value and/or

grade of the offense is an essential element that must be included in the charging

instrument for both simple arson and theft of a motor vehicle. Therefore, we

reverse Defendant’s convictions of simple arson and theft, vacate the sentences

therefor, and remand that portion of the case to the trial court for further

proceedings.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends that the trial court erred

in denying his motion to suppress. Defendant moved to suppress all statements

made by him on May 18, 2010, at 8:10 p.m.; May 19, 2010, at 4:53 p.m.; May 19,

2010, at 5:25 p.m.; and May 20, 2010, contending that they were not free and

voluntary. The trial court denied the motion.

In reviewing the correctness of a trial judge’s ruling on a
motion to suppress a confession, “we are not limited to the evidence
adduced at the hearing(s) on this motion, but rather may consider all
pertinent evidence adduced at trial.” State v. Brooks, 92-3331, Slip

6

Op. P. 10 (La. 1/17/95), 648 So.2d 366, 372, citing State v. Chopin,
372 So.2d 1222, 1223 n. 2 (La.1979) (listing cases ). We examine
this evidence in order to discern whether the testimony of the State’s
witnesses, when viewed in light of the entire record, was sufficient to
sustain the State’s “heavy burden” of proving a knowing and
intelligent waiver. We do not review the record de novo, however; as
we have often stated in the past, because the evaluation of witness
credibility often plays such a large part in the context of a motion to
suppress a confession, reviewing courts should defer to the finding of
the trial judge unless his finding is not adequately supported by
reliable evidence. Brooks, supra, at 11, 648 So.2d at 372; State v.
Nuccio, 454 So.2d 93, 100 (La.1984); State v. Thornton, 351 So.2d
480, 484 (La.1977).

State v. Green, 94-887, p. 11 (La. 5/22/95), 655 So.2d 272, 280-81 (footnote

omitted).

At the hearing on the motion to suppress, Trooper Stephen Bruno testified

that Defendant’s DNA was found on evidence collected at the crime scene and that

he was arrested. On May 18, 2010, at 8:11 p.m., after waiving his Miranda rights,

Defendant gave a statement to the police. During that statement, on one occasion,

he mentioned “should I have a lawyer.” He then stated, “y’all are f[---]ing me up

now. I should have asked for a lawyer if I’d known y’all were gonna [sic] come at

me like that, come on brother.” However, we note that Defendant did not indicate

he wished to stop answering questions; he was not under duress or intimidation;

and, Trooper Bruno did not make any threats or promises to Defendant in

exchange for his statement.

After signing another waiver of rights form, on May 19, 2010, at 11:46 a.m.,

Defendant again spoke to Trooper Bruno. He showed police where he bought

drugs and was returned to the sheriff’s office. On the same date, Trooper Bruno

was notified at 4:53 p.m. that Defendant wanted to speak to him. Defendant was

again advised of his rights, again waived his rights, and then gave another

statement, which concluded at 5:02 p.m. Shortly thereafter, Trooper Bruno was

again notified that Defendant wanted to speak to him, and he took another

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statement from Defendant at 5:25 p.m. At that time, Trooper Bruno went over

Defendant’s rights with him, and, prior to giving that statement, Defendant

indicated he was not threatened or promised anything. The statement concluded at

6:02 p.m. Trooper Bruno testified that there were no threats or promises made by

police, that Defendant understood his rights, and that Defendant voluntarily spoke

to police.

Sergeant Tim Hanks testified that a statement was taken from Defendant on

May 20, 2010, and that the recorder was not stopped and restarted during the

statement. He stated that Defendant was informed of his rights at 1:04 p.m., that

Defendant understood his rights, and that no threats, promises, or inducements had

been made to him during the statement.

Defendant testified that during the statement he gave on May 18, 2010, at

8:10 p.m., he said he wanted to stop and “maybe” get an attorney and that his

request was not honored. He stated that he asked for an attorney when the tape

recorder was off. Defendant additionally testified that he felt intimidated and that

he was threatened by police at the time his wife, daughter, and mother-in-law were

“brought into this.”

In State v. Williams, 05-317 (La.App. 5 Cir. 11/29/05), 918 So.2d 466, writ

denied, 06-638 (La. 10/6/06), 938 So.2d 64, the officers testified that the defendant

waived his rights and agreed to give the statements, and they did not coerce of

threaten the defendant or promise him anything in order to get the statements. The

fifth circuit noted the only evidence that the defendant was sleep deprived,

intimidated, threatened with death, or told what to say in his statement was from

the defendant. The fifth circuit found the trial court did not abuse its discretion

when denying the defendant’s motion to suppress.

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After a full review of the testimony in the instant case, we find no error in

the trial court’s admission of Defendant’s statements. The State established that

each time Defendant spoke with police, he was advised of his rights and

voluntarily waived them prior to making the recorded statements. Additionally,

each time Defendant was asked if he had been threatened or promised anything in

exchange for his statement, he indicated he had not. The only evidence that the

statements were made under the influence of fear, duress, intimidation, menaces,

threats, inducements, or promises was Defendant’s own testimony, and the trial

court’s ruling indicates it questioned Defendant’s credibility. Considering the

great weight placed on the trial court’s factual determinations and a thorough

review of the record, we find no error in the trial court’s denial of Defendant’s

motion to suppress.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant contends the trial court erred in

not considering his trial objections regarding trial counsel.

An accused has the right to [choose] between the right to
counsel, guaranteed in the state and federal constitutions, and the right
to self-representation. [State v.] Bridgewater, [00-1529, p. 17 (La.
1/15/02), 823 So.2d 877,] 894. However, the choice to represent
oneself “must be clear and unequivocal.” Id. “Requests which
vacillate between self-representation and representation by counsel
are equivocal.” Id. Whether a defendant has knowingly, intelligently,
and unequivocally asserted the right to self-representation must be
determined on a case-by-case basis, considering the facts and
circumstances of each. Id.

State v. Leger, 05-11, p. 53 (La. 7/10/06), 936 So.2d 108, 147-48, cert. denied, 549

U.S. 1221, 127 S.Ct. 1279 (2007).

Defendant contends that his case is unusual in that he was allowed to

represent himself after his trial had begun. He also contends that the trial court

“abruptly and unilaterally” removed his trial counsel and required him to represent

9

himself without a hearing. He further contends that he did not make an

unequivocal and timely request to represent himself and that the trial court erred in

granting his request for self-representation without holding the required Faretta1

hearing to determine if he was competent to waive counsel and was voluntarily

exercising his informed free will. Defendant states the following in his brief:

By ex parte: 1) firing trial counsel; 2) then reappointing him,
without notice to his client; 3) then abruptly firing him again, and
required [sic] Mr. Toussaint to represent himself, 4) then allowing the
trial attorney to finish the case, the trial court denied Mr. Toussaint his
right to counsel during one of the most critical parts of this case, the
calling and confronting witness in his part of the case.

The State asserts that Defendant was not entitled to a hearing before the trial

court allowed him to represent himself because he never represented himself at any

time during trial. The State further contends that the mere expression of

Defendant’s desire to represent himself did not constitute self-representation,

thereby necessitating a hearing.

During trial, Sergeant Wayne Vidrine was testifying regarding Defendant’s

statements to police when Defendant interrupted and the following occurred:

BY MR. TOUSSAINT:

Man, Your Honor, that’s not what happened. They brought me
to the scene, they told me what to say on that statement.

BY THE COURT:

Hold it, wait, wait, take the jury out.

JURY LEAVING COURTROOM AND DEFENDANT
CONTINUES TO SPEAK

BY MR. TOUSSAINT:

That’s not what happened. I’m not gonna [sic] sit here and let
them play me on that last statement. Play all them statements. They
1
“In Faretta [v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975)], the United States Supreme
Court recognized that a trial court may not force a lawyer upon a defendant when the defendant
insists he wants to conduct his own defense and voluntarily and intelligently elects to proceed
without counsel.” State v. Brown, 03-897, p. 28 (La. 4/12/05), 907 So.2d 1, 22.
10

took me to the scene, they told me what to say or they was gonna [sic]
mess over my family that’s why I said what I said, and I want to fire
my lawyer, y’all can finish without me, that’s the third time I [sic] fire
him and you told me I couldn’t fire him, I want to hire me a lawyer.

BY THE COURT:

The trial is going on Mr. Toussaint.

BY MR. TOUSSAINT:

I asked you that before trial. Thank you Your Honor, I’d like to
be excused.

BY THE COURT:

You may be excused.

BY MR. TOUSSAINT:

That’s what happened.

DEPUTY ESCORTING DEFENDANT OUT OF COURTROOM
BY THE COURT

The trial court then stated: “Mr. Chapman, I think Mr. Toussaint has terminated

your services, but since he has left I’m going to ask you and reappoint you to

complete the trial on his behalf.” The trial then continued with Sergeant Vidrine’s

testimony, after which the State rested its case.

Defense counsel called Mr. Trent Brignac, the Evangeline Parish District

Attorney, to testify. After Mr. Brignac’s testimony and a break for lunch, the court

reconvened and the following colloquy took place:

BY MR. CHAPMAN:

We need to go on the record about a few things.

My client advises me that I think he wishes to represent himself
at this point forward. He wants to recall Mr. Brignac to the stand,
conduct different areas that I didn’t cover.

BY THE COURT:

Mr. Toussaint, is it your desire to terminate the services of Mr.
Chapman and represent yourself?

11

BY MR. TOUSSAINT:

Yes sir.

BY THE COURT:

Okay, I will allow it. Mr. Brignac has been called once and has
been questioned. I assume you are going to object?

BY MR. FONTENOT:

Two things first Your Honor. I just want to make sure I
understand Mr. Toussaint’s position is that he understands he has the
right to counsel and he’s waiving that right?

BY THE COURT:

Are you waiving your right to counsel Mr. Toussaint?

BY MR. TOUSSAINT:

No, he’s not, I want to ask the questions. The questions I ask
him to ask he’s not asking. I’m not saying he can’t be on my side, but
I need all the questions that I’m saying to be asked, and the witnesses
I want to call to be called, not the witnesses that’s gonna [sic] help
them build a case.

BY THE COURT:

Your witness was called this morning, Mr. Brignac testified,
you chose not to be here voluntarily, you chose not to testify. If the
State objects to Mr. Brignac being called back to the stand I’m going
to sustain that objection.

BY MR. FONTENOT:

So, he’s representing himself Your Honor?

BY THE COURT:

He’s representing himself.

BY MR. FONTENOT:

And I understand. I guess what he’s asking is that
Mr. Chapman stay on just to assist him?

BY THE COURT:

I will ask Mr. Chapman to assist him if you don’t mind
Mr. Chapman.

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BY MR. CHAPMAN:

I don’t mind if it’s okay with him.

BY THE COURT:

Would you like Mr. Chapman to at least guide you here?

BY MR. TOUSSAINT:

I want Mr. Trent on the stand . . . .

BY THE COURT:

That’s not the question.

BY MR. TOUSSAINT:

Me or him could, it don’t matter if he ask him the questions as
long as he asks him the questions I want him to ask.

BY THE COURT:

Let me once again tell you. You chose to leave voluntarily.

BY MR. TOUSSAINT:

But that’s not the way they say everything was gonna [sic] go
Your Honor.

....

BY THE COURT:

He has testified, and I will not call him again. All right, who is
your next witness Mr. Toussaint.

BY MR. TOUSSAINT:

I only have one witness, Trent Brignac.

BY THE COURT:

He is not testifying, he has already testified. Do you have any
additional witnesses?

BY MR. TOUSSAINT:

No sir, I sure don’t.

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BY THE COURT:

If you have no additional witnesses you are resting then?

BY MR. TOUSSAINT:

I don’t know what y’all talking about.

BY THE COURT:

That’s why . . . .

BY MR. TOUSSAINT:

I want Trent to get on the stand so I can ask him the questions
that was happening at grand jury room across the hall when I gave
that false statement that I killed that girl and I didn’t kill her.

BY THE COURT:

You had your opportunity this morning, but you chose not to be
here.

BY MR. TOUSSAINT:

Your Honor, they switch everything up, he just told you, he told
me none of my witnesses are gonna [sic] be called until tomorrow.

BY MR. FONTENOT:

Your Honor, can I address that issue?

BY THE COURT:

Proceed.

BY MR. FONTENOT:

If you recall when the State did rest, we had probably an hour
or more than a half hour break between the time the State rest [sic]
and the time the defense called Mr. Brignac, which is more than
enough time for Mr. Toussaint to come up from downstairs to address
Mr. Brignac if he so choose [sic].

BY THE COURT:

It’s too late.

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BY MR. TOUSSAINT:

I [sic] been asking to come back up and he [sic] a witness they
said that he was up here and I [sic] been banging on that door to come
back up.

BY THE COURT:

You walked out this morning, the trial continued in a normal
fashion. Do you have a witness Mr. Toussaint? Call your witness, if
not, we . . . .

....

BY MR. TOUSSAINT:

You don’t have to play the tapes or none of that, just do y’all
closing.

BY MR. CHAPMAN:

It’s kind of like you can say that we rest, we rest.

....

BY MR. CHAPMAN:

One other housekeeping. As far as jury charges and that type of
thing, do you want Mr. Toussaint to handle that directly, or does he
want me to review that on his behalf?

BY MR. TOUSSAINT:

What’s that?

BY MR. CHAPMAN:

The jury charges.

BY THE COURT:

The instructions to the jury. It’s a legal technical . . . .

BY MR. TOUSSAINT:

He can handle that. The only thing I wanted to do was talk to
Trent. He can handle the rest of it.

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BY THE COURT:

All right, Mr. Chapman will review the charges. Bring the jury
in.

JURY ENTERING COURTROOM

BY THE COURT:

Please be seated.

All right, does the defense have any additional witnesses? Do
you have any additional witnesses?

BY MR. TOUSSAINT:

No sir.

Court subsequently recessed for the day.

The next day, the following occurred:

BY THE COURT:

Before we take the jury in, Mr. Toussaint, I understand you
have a statement you wish to read to the court?

....

BY MR. TOUSSAINT:

Good morning Your Honor.

If it pleases the court. I have fired my lawyer two times before
this trial started, and again yesterday you keep re-appointing me the
same lawyer. I even said I could hire one, you said you were going to
proceed. I asked the court to excuse me yesterday, while I was gone
you re-appointed Mr. Chapman as my lawyer with me not being in the
courtroom again, and then you made the guard come and get me and
talk to me about representing myself. I am not a lawyer. If that was
the case you should have let me hire one. I do not know what to do at
this time, but I know that I am not getting a fair trial. As soon as y’all
found out I was trying to hire one y’all put a rush on everything. The
only thing I want is a fair trial and a fair jury. Thank you. I would
like for the record to reflect, no, I am not representing myself because
it is too late in this trial to change things now. Have a blessed day.

BY THE COURT:

Mr. Toussaint, you certainly have the right to represent
yourself, but the law of the State of Louisiana prohibits a person from

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just terminating their lawyer at the last minute and using this as a
basis to try to get a continuance. We are too far into this matter now.
Now, if you wish to represent yourself, I need to caution you about
the consequences of it. As you have said, you are not a lawyer, you
do not know the procedural steps, you do not know the protocol that is
required in the presentation of a case to the jury, but considering your
educational background and your experiences, I want you to
understand that it could be very devastating for you to try to represent
yourself. Do you understand that sir?

BY MR. TOUSSAINT:

Yes sir, but I been trying to fire my lawyer months before this
Your Honor. It’s not just something that happened yesterday.

BY THE COURT:

We’re at the stage now Mr. Toussaint where either you are
going to represent yourself or Mr. Chapman will conclude the case for
you. You have to decide which one you want.

BY MR. TOUSSAINT:

Well, you already decided Your Honor. It’s too late to change
things now.

BY THE COURT:

Now, if you do not want Mr. Chapman representing you, you
certainly have that right, but you are putting yourself into great risk by
doing that.

BY MR. TOUSSAINT:

Your Honor, you keep re-appointing Mr. Chapman as my
attorney.

BY THE COURT:

Well, that is because . . . .

BY MR. TOUSSAINT:

I cannot represent myself Your Honor. I wanted to hire a
lawyer; you told me you was gonna [sic] proceed. This was way
before this trial started.

BY THE COURT:

The first time you told me you wanted to hire a lawyer was five
days before the trial.

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BY MR. TOUSSAINT:

No, that’s not true.

BY THE COURT:

Anyway, that’s where we are.

In State v. Lewis, 07-944 (La.App. 5 Cir. 3/25/08), 982 So.2d 866, the

defendant, through counsel, filed a written motion requesting that he be allowed to

represent himself. At a hearing on the issue, the trial court asked the defendant

whether he had any training that would allow him to represent himself. The

defendant answered that he did not. The trial court then asked the defendant why

he wanted to represent himself. The defendant indicated dissatisfaction with his

attorney as well as confidence in his knowledge of and ability to handle his case.

Lastly, the trial court asked the defendant whether he had ever selected a jury or

tried a case. The defendant answered no to both questions. Following this limited

questioning, the judge court ruled that it would allow the defendant to “do a certain

amount of the defense” for himself, but defense counsel would remain in the

courtroom in the event the defendant needed advice. Id. at 869.

The fifth circuit found it was questionable whether the above exchange was

sufficient to constitute a valid waiver of the defendant’s right to counsel.

However, the fifth circuit did not find it necessary to make a determination on that

issue. The court noted the defendant did not object to the trial court’s ruling on the

issue of self-representation and acquiesced when the trial judge informed him that

he could do a certain amount of defense for himself, but that his court appointed

defense counsel would be there to assist him.

The fifth circuit further noted that while the parties alleged the defendant

waived his right to counsel, the record indicated that defense counsel was present

at all court proceedings subsequent to the trial court’s ruling on the issue of

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self-representation. Specifically, the minute entries indicated that defense counsel

appeared for trial on June 18, 21, and 28, 2007. On each of those occasions, the

trial was continued. Then, on August 20, 2007, the defendant appeared, again with

defense counsel, and requested a continuance of the trial, which was denied by the

trial court. The transcript from the August 20, 2007 hearing showed that defense

counsel did, in fact, assist defendant. He prompted the defendant to move for the

continuance and also objected on his behalf when it was denied. The next day, the

trial court considered numerous pre-trial motions which the defendant had filed.

Once again, the minute entry from that date indicated the defendant represented

himself but was assisted by defense counsel. Following the denial of his motions

on August 21, 2007, the defendant, with the clear representation of counsel,

withdrew his not guilty pleas and pled guilty to the charged offenses. At the

beginning of the guilty plea proceedings, defense counsel advised the trial court

that he had filled out the waiver of rights form with the defendant and had

explained those rights to him. Moreover, the waiver of rights form was signed by

the defendant and defense counsel. In the form, the defendant indicated that he

was satisfied with the way his attorney and the trial court had handled his case.

Defense counsel also represented the defendant in the guilty plea proceedings on

the multiple bill, and thereafter, filed a motion for appeal on the defendant’s

behalf.

The fifth circuit went on to find that the defendant had the assistance of

counsel throughout the proceedings and was fully represented by counsel at the

time he entered his guilty pleas. Therefore, the defendant’s rights were not

violated by the trial court’s ruling on the issue of self-representation.

In State v. Treadway, 97-901 (La.App. 5 Cir. 3/25/98), 710 So.2d 1121,

writs denied, 98-1634 (La. 9/25/98), 725 So.2d 490, 00-1197 (La. 1/12/01),

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780 So.2d 1067, the defendant filed a pre-trial motion for permission to represent

himself. The day that trial was set to begin, the trial judge addressed the motion

and ruled the defendant would have the opportunity to assist his court-appointed

defense counsel. At the same hearing, appointed counsel made arguments on

behalf of the defendant and the defendant never re-urged his motion to represent

himself. On the date trial actually began, the defendant filed several pro se

motions. In one motion, he complained he was not satisfied with defense counsel’s

representation. The exchange below then occurred:

THE DEFENDANT:

Your Honor, I’m not happy with Ms. Guste as counsel---

THE COURT:

--- expound on the record---

THE DEFENDANT:

-- whatsoever. The other lawyer was supposed to be--

THE COURT:

Mr. Treadway, I’m, going to tell you something that it’s not in your
best interest to continue talking once the jury comes in the room,
okay.

THE DEFENDANT:

That man attorney that was here last week was supposed to be present
here today also.

Id. at 1123.

The fifth circuit stated this exchange indicated the defendant merely wanted

a different attorney. The fifth circuit further stated:

Treadway did at first seek pro se representation but he
subsequently was afforded all of the benefits of legal representation.
Perceivably, he agreed with everything Ms. Guste did or did not do.
In any event, Treadway on appeal has not alleged any mistake by
Ms. Guste or has he pointed out any flaw in the manner his defense
was presented.

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The trial judge did not conduct a full hearing to ascertain
whether Treadway was sufficiently adept to represent himself;
however, inasmuch as he was ably and competently represented by
counsel following the in-court exchanges with the trial judge, the need
for a formal waiver of counsel was abrogated. On January 23, 1997, it
would seem that Treadway had abandoned his pro se motion.

Treadway states in his brief to this Court that he was not
allowed to question any witness or to argue his case. He does not say
that during trial he wanted to do any of these things but was denied
the opportunity, either by Ms. Guste or the trial judge.

We see no prejudice or reversible error in Treadway’s
consenting to Ms. Guste’s trial representation although early on he
had moved for pro se representation and on the day of trial said that he
wanted Ms. Guste dismissed and “the man attorney” present.

Id. at 1123-24.

In the instant case, we need not determine whether Defendant validly waived

his right to counsel. As in Lewis, 982 So.2d 866, and Treadway, 710 So.2d 1121,

Defendant was represented by counsel throughout the proceedings. Mr. Chapman

was present at all times during trial subsequent to Defendant’s request to fire

Mr. Chapman and/or represent himself. Mr. Chapman made closing arguments to

the jury and was present when the jury was instructed and the verdicts rendered.

Further, Mr. Chapman was present when Defendant was sentenced, and he filed a

Motion for Appeal on behalf of Defendant.

Having thoroughly reviewed the record, we find that Defendant had the

assistance of counsel and was fully represented by counsel throughout the trial.

Therefore, we find that Defendant’s rights were not violated by the trial court’s

ruling on the issue of self-representation.

DISPOSITION

Defendant’s conviction and sentence for second degree murder is affirmed.

Defendant’s convictions for simple arson with damages over $500.00 and theft of a

motor vehicle over $500.00 are reversed; the sentences imposed for those two

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convictions are vacated; and, the matter is remanded to the trial court for further

proceedings consistent herewith.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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