State of Louisiana v. Easton Joseph Francisco

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-455

STATE OF LOUISIANA

VERSUS

EASTON JOSEPH FRANCISCO

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 08-1306
HONORABLE PAUL J. DEMAHY, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Angela B. Odinet
Assistant District Attorney
307 Church Street
St. Martinville, LA 70582
(337) 394-2220
COUNSEL FOR APPELLEE:
State of Louisiana

Beth S. Fontenot
Louisiana Appellate Project
P. O. Box 3183
Lake Charles, LA 70602-3183
(337) 491-3864
COUNSEL FOR DEFENDANT/APPELLANT:
Easton Joseph Francisco

IN PROPER PERSON:
Easton Joseph Francisco
Louisiana State Prison
Main prison CBA
Angola, LA 70712

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DECUIR, Judge.

Defendant, Easton Francisco, was indicted for first degree murder, a

violation of La.R.S. 14:30. The State sought the death penalty but was prohibited

from pursuing it based on the trial court’s finding that Defendant was mildly

mentally retarded.

Defendant waived his right to be present at the trial. The jury found

Defendant guilty as charged, and the trial court imposed a sentence of life

imprisonment to be served without the benefit of probation, parole, or suspension

of sentence. On appeal, Defendant assigns two errors.

FACTS

On May 9, 2008, Defendant along with co-defendant, Akeem Evans, entered

Sidney Long’s Pawn Shop and shot the victim, Sidney Long, and stole some guns.

Mr. Long died of multiple gunshot wounds.

UNANIMOUS VERDICT

Defendant asserts that the jury verdict should have been unanimous because

the State elected the penalty for capital punishment. Defendant requests the record

be supplemented with the jury’s sealed verdict and argues if the verdict is not

unanimous, his conviction should be reversed and the sentence vacated. Review of

the sealed verdict which was included in the record indicates the verdict was

unanimous. Accordingly, this assignment has no merit.

CAPACITY TO WAIVE

Defendant asserts that the trial court erred in failing to address the issue of

whether or not he lacked the capacity to decide to absent himself from trial.

Defendant asserts that his capacity to proceed was called into question by the

doctors who conducted an Atkins exam on him as well as one of his attorneys and,

therefore, should have been ordered by the trial court.

We have reviewed the record and note that a lengthy exchange occurred

between Defendant, his attorney, and the trial judge. During this exchange, the

trial court explained in both legal and practical terms what Defendant was waiving

and the court’s view that it was not in Defendant’s best interest. Defendant

consistently and repeatedly insisted that he did not wish to be present at his trial.

Defendant’s counsel reiterated the court’s explanation and indicated that counsel

needed Defendant’s input at trial. Again, Defendant consistently and repeatedly

insisted that he did not wish to be present.

In addition, defense counsel discussed the mental retardation issue with the

court but made no formal objection to the court allowing Defendant to waive his

right to be present at trial. Defendant concedes no formal motion to determine

Defendant’s capacity to waive his right to be present at trial was filed. However,

Defendant argues his attorney brought up the issue to the trial court, and the trial

court failed to rule on it. Defendant asserts in pertinent part:

Thus, without any inquiry as to his mental capacity to make a decision
not to participate in his own trial, Mr. Francisco, a mentally retarded
man with a 94% probability of brain dysfunction, with a poor ability
to deal with abstract concepts and with poor insight and judgment,
was allowed to make the decision to be absent from his entire first
degree murder trial instead of being physically restrained in court.
Although the trial court explained the rights Mr. Francisco was giving
up by absenting himself from trial (i.e., the right to confront his
accusers), it is questionable whether someone with Mr. Francisco’s
mental capacity could actually understand and weigh the importance
of that right against his own fear of being physically restrained in
court. Considering Dr. Vossburg’s and Dr. Zimmermann’s reports and
considering defense counsel’s stated concern that Mr. Francisco may
not have the mental capacity to decide not to participate in his own
trial, reasonable grounds existed for the trial court to question Mr.
Francisco’s capacity to decide to absent himself from trial. Mr.
Francisco’s participation in his trial was especially important in this
case since no physical evidence linked him to the crime and the main
witnesses against him benefitted from their testimony against Mr.
Francisco. Furthermore, Akeem admitted that the first time he told the
“truth” was right before his very own first degree murder trial, at
which time he decided to plead guilty to manslaughter in exchange for
his testimony against Mr. Francisco. Thus, if Mr. Francisco would

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have been present, he could have alerted defense counsel as to any
misstatements and untruths told by the witnesses against him. For
these reasons, the trial court erred in failing to stay the proceedings
and resolve the issue of whether or not Mr. Francisco possessed the
mental capacity to decide whether or not he should participate in his
trial. Since neither one of the doctors who examined Mr. Francisco
were specifically asked to determine Mr. Francisco’s mental capacity
to proceed to trial, undersigned counsel submits that “a meaningful
retrospective determination of defendant’s capacity cannot be made
from the record.” State ex rel. Seals v. Louisiana, 2000-2738 (La.
10/25/02), 831 So.2d 828, 835. Thus, the conviction should be
vacated and the case remanded for a new trial. Id.

This issue was arguably not properly preserved for review on appeal since

neither a formal motion was filed nor a formal objection was made by Defendant.

La.Code Crim.P. art. 841. However, because defense counsel did raise the issue

with the trial court, we will review the matter.

Defendant does not challenge the voluntariness or the sufficiency of the

waiver. He limits the assignment to whether or not the trial court erred in failing to

address Defendant’s capacity to waive his right to be present at trial due to his

mental retardation.

We found no Louisiana statutes or cases discussing an express waiver of

one’s right to be present from the time of commencement of trial to the end of the

trial. We also found no cases directly on point in federal law. However, the courts

have allowed an express waiver of many constitutional rights, i.e., right to a trial

by jury, right to remain silent, and right to counsel. Consequently, we find that an

express waiver of one’s right to be present at trial is permissible.

The next question is whether the trial court erred in failing to address

Defendant’s capacity, due to his mental retardation, to waive his right to be present

at trial. In State v. Anderson, 06-2987, pp. 25-26 (La. 9/9/08), 996 So.2d 973, 995,

cert. denied, ___ U.S. ___, 129 S.Ct. 1906 (2009), the court addressed a similar

issue in the context of a waiver of Miranda rights and held in pertinent part:

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Low intellect, moderate mental retardation or diminished
mental capacity does not, per se, vitiate capacity to make a free and
voluntary statement or a knowing and intelligent Miranda waiver.
State v. Brooks, 93–3331, pp. 11–17(La.1/17/95), 648 So.2d 366,
373–75; State v. Benoit, 440 So.2d 129, 131 (La.1983); State v.
Lindsey, 404 So.2d 466, 472 (La.1981). Voluntariness is determined
on a case by case basis, under a totality of the circumstances standard.
State v. Brooks, 648 So.3d at 372; State v. Benoit, 440 So.2d at 131.

In State v. Green, 94-887 (La. 5/22/95), 655 So.2d 272, the supreme court

reversed the appellate court’s finding that in light of un-contradicted medical

testimony establishing defendant’s mental retardation and his brain dysfunction, he

could not make a knowing and intelligent waiver of his constitutional rights. The

court held in pertinent part:

In cases, such as this one, which involve allegations of
diminished mental capacity, “although the defendant bears the burden
of proving the existence of any mental abnormality which might
render his confession per se involuntary, in the absence of such a
showing the State retains the ultimate burden of proving beyond a
reasonable doubt that the confession was voluntary.” State v. Brooks,
92-3331, (La. 1/17/95), 648 So.2d 366, 373. See also State v. Napier,
385 So.2d 776 (La.1980). In all cases, regardless of the applicable
burden of proof, courts look to the “totality of the circumstances”
surrounding a confession to determine its voluntariness. See Withrow
v. Williams, [507] U.S. [680], ___, 113 S.Ct. 1745, 1754, 123 L.Ed.2d
407 (1993), re’hg denied, [509] U.S. [933], 113 S.Ct. 3066, 125
L.Ed.2d 748 (1993) (listing factors relevant to voluntariness inquiry);
Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047,
36 L.Ed.2d 854 (1973) (same).

The only issue presented to us by the opinion of the court of
appeal, however, concerns the defendant’s ability to comprehend his
Miranda rights. We have noted in the past that in cases involving
mental retardation the question of a confession’s voluntariness often
“becomes enmeshed in the related, but distinct, question of the
knowing and intelligent nature” of the defendant’s Miranda waiver.
Brooks, supra, at P. 12, 648 So.2d at 373, citing State v. Lindsey, 404
So.2d 466, 472 (La.1981) (citations omitted). However, the current
posture of this case makes it unnecessary for us to engage in an
extensive discussion of the voluntariness issue. Because our review
of the record reveals no reason to disturb the lower courts’ findings
regarding the voluntariness of Green’s confession, we affirm the
lower courts’ judgment that Green’s confession was voluntarily made
and proceed to our discussion of Green’s Miranda waiver.

....

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In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966), re’hg denied, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121
(1966), the United States Supreme Court declared that a condition
precedent to obtaining a statement admissible in court from a suspect
in police custody is that the suspect be informed that he has the right
to remain silent and to consult with an attorney. Miranda also made it
clear that for such a statement to be admissible it must be made with a
knowing and intelligent waiver of those rights. Miranda, supra, at
475, 86 S.Ct. at 1602. In other words, for a statement which is the
product of custodial interrogation to be entered into evidence against a
criminal defendant, at the time the statement is made the defendant
must understand that he is entitled to certain protections under the law
and nevertheless decide to speak.

Even when a defendant has not expressly invoked his rights
under Miranda, “[t]he courts must presume that a defendant did not
waive his rights.” North Carolina v. Butler, 441 U.S. 369, 373, 99
S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). Furthermore, it is well-
settled that a “heavy burden rests on the government to demonstrate
that the defendant knowingly and intelligently waived his privilege
against self-incrimination and his right to retained or appointed
counsel.” Tague v. Louisiana, 444 U.S. 469, 470, 100 S.Ct. 652, 653,
62 L.Ed.2d 622 (1980). When, as in this case, a defendant has
expressly waived his Miranda rights, the question becomes “whether
the purported waiver was knowing and intelligent . . . under the
totality of the circumstances.” [State v.] Abadie, supra, 612 So.2d [1]
at 5 [(La. 1993)], quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044-
46, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983). This “totality of the
circumstances” includes “the particular facts and circumstances
surrounding the case, including the background, experience, and
conduct of the accused.” Solem v. Stumes, 465 U.S. 638, 647, 104
S.Ct. 1338, 1344, 79 L.Ed.2d 579 (1984), quoting Butler, supra, 441
U.S. at 374-375, 99 S.Ct. at 1757-1759. See also State v. Wilson, 467
So.2d 503 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88
L.Ed.2d 246 (1985); re’hg denied, 474 U.S. 1027, 106 S.Ct. 585, 88
L.Ed.2d 567 (1985) (diminished intellectual capacity of defendant
only a factor to be considered in determining whether Miranda waiver
knowing and intelligent).

. . . Our inquiry involves his understanding of those rights, and
consequently whether or not the defendant’s express waiver was a
“knowing and intelligent” one. While it may be true that, as
defendant argues in brief, “prior history with the criminal judicial
system alone has never been considered a valid basis for determining
the admissibility of a confession,” that history is certainly a part of the
“totality of the circumstances” which a trial judge may consider in
determining a defendant’s comprehension of his Miranda rights.

....

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For these reasons, we find that the court of appeal erred in
concluding that Melvin Green’s waiver of his Miranda rights was not
a “knowing and intelligent” one. In particular, the court of appeal
erred in reversing the trial court’s finding when there was ample
evidence in the record to support it. The confession was properly
admitted during the guilt phase of Melvin Green’s trial.

Id. at 279-85 (footnotes omitted). See also, State v. Manning, 03-1982 (La.

10/19/04), 885 So.2d 1044, cert. denied, 544 U.S. 967, 125 S.Ct. 1745 (2005).

Additionally, the United States Supreme Court, in Godinez v. Moran, 509

U.S. 389, 113 S.Ct. 2680 (1993), addressed whether the competency standard for

pleading guilty or waiving the right to counsel is higher than the competency

standard for standing trial. The court held in pertinent part:

A finding that a defendant is competent to stand trial, however,
is not all that is necessary before he may be permitted to plead guilty
or waive his right to counsel. In addition to determining that a
defendant who seeks to plead guilty or waive counsel is competent, a
trial court must satisfy itself that the waiver of his constitutional rights
is knowing and voluntary. Parke v. Raley, 506 U.S. 20, 28–29, 113
S.Ct. 517, 523, 121 L.Ed.2d 391 (1992) (guilty plea); Faretta [v.
California], supra, 422 U.S. [806], at 835, 95 S.Ct. [2525], at 2541
[1975] (waiver of counsel). In this sense there is a “heightened”
standard for pleading guilty and for waiving the right to counsel, but it
is not a heightened standard of competence.

This two-part inquiry is what we had in mind in Westbrook [v.
Arizona, 384 U.S. 150, 86 S.Ct. 1320 (1966)] when we distinguished
between “competence to stand trial” and “competence to waive [the]
constitutional right to the assistance of counsel,” 384 U.S., at 150, 86
S.Ct., at 1320, we were using “competence to waive” as a shorthand
for the “intelligent and competent waiver” requirement of Johnson v.
Zerbst [304 U.S. 458, 58 S.Ct. 1019 (1938)]. This much is clear from
the fact that we quoted that very language from Zerbst immediately
after noting that the trial court had not determined whether the
petitioner was competent to waive his right to counsel. See 384 U.S.,
at 150, 86 S.Ct., at 1320 (“ ‘This protecting duty imposes the serious
and weighty responsibility upon the trial judge of determining
whether there is an intelligent and competent waiver by the accused’ “)
(quoting Johnson v. Zerbst, 304 U.S., at 465, 58 S.Ct., at 1023). Thus,
Westbrook stands only for the unremarkable proposition that when a
defendant seeks to waive his right to counsel, a determination that he
is competent to stand trial is not enough; the waiver must also be
intelligent and voluntary before it can be accepted.

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III

Requiring that a criminal defendant be competent has a modest
aim: It seeks to ensure that he has the capacity to understand the
proceedings and to assist counsel. While psychiatrists and scholars
may find it useful to classify the various kinds and degrees of
competence, and while States are free to adopt competency standards
that are more elaborate than the Dusky formulation, the Due Process
Clause does not impose these additional requirements. Cf. Medina v.
California, 505 U.S. 437, 446–453, 112 S.Ct. 2572, 2577-2581, 120
L.Ed.2d 353 (1992). The judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings consistent with this
opinion.

Id. at 400-02 (footnotes omitted).

After reviewing the above case law on similar issues, we find that when

mental retardation is an issue, it should be a factor taken into consideration when

the trial court is determining if the waiver of the constitutional right, in this case,

absence from trial, is knowingly and intelligently entered.

In the present case, the psychologists that examined Defendant characterized

his mental retardation as “mild mental retardation range,” and his test scores were

within the range that “could reflect Mental Retardation.” Defendant had notice of

the trial date and was represented by counsel at the time he waived his right to be

present at trial and throughout the trial. The trial court informed Defendant of the

disadvantages of not being present at his trial. When Defendant’s attorney pointed

out to the trial court that he was not sure how the mental retardation issues would

affect Defendant’s ability to decide to not participate in trial, the trial court, in

simple terms, asked Defendant if he wanted to see what went on at the trial.

Additionally, the trial court offered Defendant the opportunity to watch the trial

from jail. Defendant repeatedly said he wanted to go back to the jail.

Accordingly, we find no error in the trial court’s acceptance of Defendant’s

waiver of his right to be present at trial.

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DECREE

For the foregoing reasons, Defendant’s conviction is affirmed.

AFFIRMED.

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