State of Louisiana v. Joseph Anton Chehardy, Jr.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1337

STATE OF LOUISIANA

VERSUS

JOSEPH ANTON CHEHARDY, JR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 303,155
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery,
Judges.

CONVICTIONS AFFIRMED;
SECOND DEGREE MURDER SENTENCE AFFIRMED;
AGGRAVATED BATTERY SENTENCES VACATED;
MATTER REMANDED FOR RESENTENCING
ON AGGRAVATED BATTERY CONVICTIONS
WITH INSTRUCTIONS.

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Joseph Anton Chehardy, Jr.

Joseph Anton Chehardy, Jr.
#598821
Tu-Lower Tier - C1
Louisiana State Penitentiary
Angola, Louisiana 70712
(225) 655-4411
In Proper Person

James C. Downs
District Attorney — Ninth Judicial District
Numa V. Metoyer, III
Assistant District Attorney
Post Office Drawer 1472
Alexandria, Louisiana 71309
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Joseph Anton Chehardy, Jr., appeals his

convictions and sentences for second degree murder and two counts of aggravated

battery. In his assignment of error, Defendant’s appellate counsel alleges

insufficiency of the evidence. Defendant has also filed a pro se brief with

assignments of error, alleging ineffective assistance of counsel, defective voir dire,

illegal sentence, failure of notice of grand jury proceedings, and trial court error in

denying his motions to suppress statements and quash the indictment. For the

following reasons, we affirm Defendant’s conviction and sentence for second

degree murder; we affirm Defendant’s conviction on both counts of aggravated

battery; we vacate Defendant’s sentence on both counts of aggravated battery; and,

we remand the matter to the trial court for resentencing on both counts of

aggravated battery with instructions relative to post-conviction relief.

FACTS

The record indicates that two deputies, Barry McCain and Steven Logsdon,

both with the Rapides Parish Sheriff’s Office, responded to a domestic disturbance

at Defendant’s home. After shooting his wife several times at their home,

Defendant attempted to escape by running down the two deputies with his truck.

As they stood in the driveway, Defendant, ignoring their calls for him to approach

them with his hands up, entered his truck and sped directly towards the two men,

forcing them to leap aside to avoid serious bodily injury and/or death. Defendant’s

wife died as a result of the gunshot wounds.

PROCEDURAL HISTORY

Defendant was indicted on July 29, 2010, on one count of second degree

murder, a violation of La.R.S. 14:30.1, and on two counts of attempted first degree

murder, violations of La.R.S. 14:27 and 14:30(A)(2). Jury trial commenced on

May 15, 2012, and, on May 17, 2012, Defendant was found guilty of one count of

second degree murder and two counts of aggravated battery, violations of La.R.S.

14:34.

Defendant was sentenced on May 25, 2012, to life imprisonment without the

benefit of parole, probation, or suspension of sentence on the conviction of second

degree murder and to ten years imprisonment at hard labor on each count of

aggravated battery, to be served consecutively with each other and with the life

sentence. He filed a Motion to Reconsider Sentence, which was denied without a

hearing.

ASSIGNMENTS OF ERROR

Assignment of Error by Defendant’s Appellate Counsel:

Defendant’s appellate counsel asserts that “[t]he trial court erred in finding

Joseph Chehardy guilty of two counts of aggravated battery.”

Pro Se Assignments of Error:

1. The trial court erred in imposing an unservable punishment,
violating La. Constitution Article 1, § 20.

2. The trial court erred in failing to protect the appellant’s right to the
priviledge [sic] of self-incrimination, thereby violating La.Const.
Articles 1, § 13 and 1, § 16.

3. The appellate counsel for Joseph Chehardy violated La. Const.
Articles 1, §§ 2, 3 when he chose not to appeal appellant[’]s
conviction and sentence for La. R.S. 14:30.1.

4. The trial court erred by failing to send notice to defense counsel
[of] the meeting of the grand jury, violating La. Const. Articles 1,
§§ 2, 3 and the 6th Amendment to the U.S. Constitution.

5. The trial court erred when violating La. Con. [sic] Article 1 § 16,
by allowing the prosecution team to challenge the jurors and make
strikes so that as many women as possible would fill the seats
against appellant.

6. The defense counsel, Mr. Joseph Kutch, did not effectively assist
his client, the appellant, according to the strict demands of the 6th

2

Amendment to the U.S. Constitution and case law standard
[Strickland v. Washington].

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 two

errors patent.

First, Defendant’s sentences for aggravated battery are indeterminate.

Louisiana Revised Statutes 14:34 carries a term of imprisonment for not more than

ten years with or without hard labor. In sentencing Defendant, the court stated:

[T]he sentence of the Court is you are to serve life imprisonment, at
hard labor, with Louisiana Department of Corrections. That sentence
is without benefit of probation, parole or suspension of sentence. On
the aggravated batteries of the police officers, you are to serve ten
years on each of those sentences. Those sentences are to be
concurrent with each other. I’m sorry. They’re to be consecutive
with each other. That’s Count 2 and 3. Count 2 is 10; Count 3 is 10.
They’re consecutive with each other and consecutive with Count 1,
which is the life imprisonment. So that’s 120 years.[1]

Although the court minutes indicate the two sentences for aggravated

battery were imposed at hard labor, the transcript does not reflect this. “[W]hen

the minutes and the transcript conflict, the transcript prevails.” State v. Wommack,

00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.

9/21/01), 797 So.2d 62.

The trial court’s failure to specify whether the sentences for aggravated

battery were to be served with or without hard labor rendered those sentences

indeterminate, thus requiring that the sentences be vacated and the case remanded

for resentencing with the trial court being instructed to specify whether the

sentences are to be served with or without hard labor. State v. Matthew, 07-1326
1
Initially, we note the trial court’s concluding statement that a life sentence plus two
consecutive ten-year sentences totals 120 years is incorrect. However, in this case, it has no
impact on the sentence. There is no question that the court imposed a life sentence plus two ten-
year sentences to run consecutively. Additionally, the 120-year sentence is not mentioned in
either the court minutes or the commitment order.
3

(La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied, 08-1664 (La. 4/24/09),

7 So.3d 1193.

Second, we note that the trial court incorrectly advised Defendant of the time

limitation for filing an application for post-conviction relief. Defendant was

informed that he has “two years to file an Application for Postconviction Relief

once [his] appeal . . . the delays for the appeal have [been] denied.” Louisiana

Code of Criminal Procedure Article 930.8 provides that Defendant has “two years

after the judgment of conviction and sentence has become final” to seek post-

conviction relief. Therefore, we direct the trial court to correctly inform Defendant

of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

LAW AND DISCUSSION

ASSIGNMENT OF ERROR BY APPELLATE COUNSEL

Defendant contends that there was insufficient evidence to sustain his

convictions for aggravated battery. Defendant argues that although actual injury is

not required, a necessary element of the offense of aggravated battery is physical

contact with the victim, and that element is missing.

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

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); State v. Mussall, 523 So.2d 1305 (La.1988).
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. State v. Silman, 95-0154
(La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on
the factfinding function of the jury only to the extent necessary to
assure the Jackson standard of review. State v. Bordenave, 95-2328
(La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate
court to assess credibility or re-weigh the evidence. Id.

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

4

Defendant was charged with two counts of attempted first degree murder for

attempting to run down the two deputies. First degree murder is defined as the

killing of a human being “[w]hen the offender has a specific intent to kill or to

inflict great bodily harm upon a fireman, peace officer, or civilian employee of the

Louisiana State Police Crime Laboratory or any other forensic laboratory engaged

in the performance of his lawful duties[.]” La.R.S. 14:30(A)(2). The statutory

definition of an “attempt” to commit an offense is as follows:

Any person who, having a specific intent to commit a crime,
does or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.

La.R.S. 14:27(A).

Battery is defined as “the intentional use of force or violence upon the

person of another[,]” and the offense of aggravated battery is a battery committed

with a “dangerous weapon.” La.R.S. 14:33 and La.R.S. 14:34. The offense of

aggravated battery requires “physical contact whether injurious or merely

offensive.” State v. Dauzat, 392 So.2d 393, 396 (La.1980).

Deputies McCain and Logsdon testified at trial. They both testified that they

were close to Defendant’s house when they were separately dispatched to a

domestic disturbance, so they arrived fairly quickly and simultaneously. Deputy

McCain stated he was advised that there were shots fired. When he arrived,

Deputy Logston was already out of his vehicle. Deputy McCain said he parked his

vehicle on the roadway and walked to the driveway. Although it was early

evening, there was enough lighting in the area to see what was happening.

Because there was a report of a gun involved, he took his M16 rifle with him. As

he approached the driveway, he heard Deputy Logsdon issuing commands for

Defendant to walk towards him, to come and talk to him, and to show his hands.

5

Defendant ignored Deputy Logsdon’s commands and got into his truck. He

backed the truck around so that it was pointed out towards the roadway. Deputy

McCain stated that he and Deputy Logsdon stood directly in the driveway in front

of the truck, thinking that if they were standing in the driveway, Defendant would

see them and automatically stop. He described two posts that were at the end of

the driveway and fences along both sides, so there was no room for Defendant to

swerve around them to get out of the driveway onto the roadway. However,

Defendant gunned the engine and raced down the driveway. Deputy McCain

testified that he was in uniform, with a rifle in his hand, and both police units had

lights still flashing. He further stated that Defendant looked directly at them as he

sped forward and that Defendant sped by so fast that he actually stumbled

backwards, which saved him from being hit. He said he did not know whether

Defendant had hit Deputy Logsdon at that point.

Deputy Logsdon testified as follows:

We had our flashlights on him, and we’re just telling him, giving him
commands to show his hands and come talk to us. He ignored all of
our commands[,] and he got into his vehicle. We both walked the
fence line, and how it’s set up, there is a fence line facing the street
and there are two posts to - - for the driveway comes out [sic]. We
walked down in between the posts and the driveway[,] thinking this
will stop him. He can’t, you know, [because] we’re blocking his only
way of getting out. He turned his truck and faced us. We had our
lights on, but also [there] was another light that kind of illuminated
the street area or the driveway area. We gave him again [sic] verbal
commands to shut down the vehicle and get out and talk to us. I
remember looking at him and, and just - - his expression changed
from where it - - to me it was a thing of him making a decision[,] and
then the gravel started going. He stepped on the gas[ ] and just started
coming at us. At this . . .

Q. And was he coming at you at a high rate of speed?

A. Yes, a high rate of speed in a very short distance. At this time, I
was thinking, I don’t know if he’s, if he’s got the gun on him. I was
on the driver’s side door where his, his - - he was going to be on my
side. I was thinking he could possible just shoot me. Also, he’s just
driving at me, and I got out of the way thinking if he has control of

6

this vehicle[,] it’s very easy for him just to, you know, finish me off,
just run me over. At that, at that point[,] I used judgment to fire my
weapon. I fired it twice into the side of his, his truck, and he, he’d
gone past us.

We agree with Defendant that contact is a necessary element of aggravated

battery and that contact is missing from the State’s evidence. Neither deputy

testified they were touched by Defendant’s vehicle or any other dangerous

instrumentality controlled by Defendant. However, in this case, while Defendant

was charged with attempted first degree murder, he was convicted of the

responsive verdict of aggravated battery. Aggravated battery is a legislatively

authorized responsive verdict to attempted first degree murder. La.Code Crim.P.

art. 814(A)(2). In cases where a jury returns a legislatively approved responsive

verdict, it is common jurisprudence in Louisiana that, absent a contemporaneous

objection to the inclusion of the responsive verdict in the instructions to the jury,

the jurors have the right to compromise between the charged offense and a verdict

of not guilty. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert.

denied, 461 U.S. 959, 103 S.Ct. 2432 (1983); State v. Charles, 00-1611 (La.App. 3

Cir. 5/9/01), 787 So.2d 516, writ denied, 01-1554 (La. 4/19/02), 813 So.2d 420;

State v. Templet, 05-2623 (La.App. 1 Cir. 8/16/06), 943 So.2d 412, writ denied,

06-2203 (La. 4/20/07), 954 So.2d 158.

In State v. Alsay, 11-562 (La.App. 5 Cir. 12/13/11), 81 So.3d 145, writ

denied, 12-1041 (La. 9/21/12), 98 So.3d 335, the defendant was charged with one

count of attempted first degree murder and one count of attempted second degree

murder, but was convicted of two counts of aggravated battery. On appeal, he

argued the evidence was insufficient to support the aggravated battery convictions,

because there was no evidence that either victim was actually struck by a bullet

from the gun he had discharged in their direction, nor was either victim subjected

7

to any battery by the use of any other deadly weapon. In Alsay, the defendant did

not object to the inclusion of the responsive verdict of aggravated battery in the

jury instructions. The fifth circuit affirmed the convictions and noted:

In Blackburn, 424 So.2d at 251-52, the supreme court explained:

It would be unfair to permit the defendant to have the
advantage of the possibility that a lesser “compromise”
verdict will be returned (as opposed to being convicted of
the offense charged) and then to raise the complaint for
the first time on appeal, that the evidence did not support
the responsive verdict to which he failed to object.

Accordingly, defendant is entitled to a reversal of his
conviction only if the evidence is insufficient under the Jackson
standard to support a conviction of the charged offenses, attempted
first and attempted second degree murder, regardless of whether the
responsive verdict is supported by the evidence. [State v.] Austin, [04-
993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, writ denied, 05-830 (La.
11/28/05)].

Id. at 148-49.

In State v. Jones, 03-180 (La.App. 3 Cir. 9/10/03), 855 So.2d 408, writ

denied, 04-409 (La. 1/14/05), 889 So.2d 262, this court affirmed the defendant’s

conviction for attempted second degree murder after, in an attempt to escape

pursuit by a police officer, he backed his vehicle at high speed towards the officer,

forcing him to jump onto the trunk of the police unit to avoid being struck by the

vehicle. In Jones, the State had to prove that the defendant had the specific intent

to kill the officer and committed an overt act in furtherance. See State v. Williams,

95-879 (La.App. 3 Cir. 1/31/96), 670 So.2d 414.

Furthermore, in Jones, 855 So.2d at 411-12, this court noted:

“Specific criminal intent is that state of mind which exists when the
circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.”
La.R.S. 14:10(1). “[S]pecific criminal intent need not be proven as
fact but may be inferred from the circumstances of the case and
actions of the defendant.” State v. Robertson, 98-883, p. 6 (La.App. 3
Cir. 12/9/98), 723 So.2d 500, 504 (citations omitted), writ denied, 99-
0658 (La.6/25/99), 745 So.2d 1187.

8

In the current case, both deputies testified that Defendant had no avenue of

escape other than driving the truck directly towards them and out of the driveway

between the two posts bordering the end of the driveway. Both deputies testified

they were very visible and that Defendant looked directly at them when he gunned

the vehicle and accelerated at a fast rate of speed towards them. In this case,

Defendant’s actions exhibited an intent to kill the deputies in order to facilitate his

escape. As noted above, specific intent may be established by the circumstances

surrounding an accused’s actions. Because the evidence satisfied the elements of

attempted first degree murder, we find that the jury’s decision to “compromise” the

verdict was lawful under the circumstances. Furthermore, a review of the record

shows that Defendant never objected to the inclusion of the responsive verdict of

aggravated battery in the jury’s instructions. Accordingly, this assignment of error

is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the sentences imposed are “unservable.” He does not

explain exactly what he means other than he alleges that the sentences are

constitutionally excessive.

As discussed in the Errors Patent section of this opinion, the two ten-year

terms of imprisonment imposed on the convictions for aggravated battery are to be

vacated; therefore, the issue of the excessiveness of those sentences is moot.

Regarding the life sentence imposed on the conviction for second degree murder,

the conviction mandates a punishment of life imprisonment without the benefit of

parole, probation, or suspension of sentence. La.R.S. 14:30.1(B).

[W]here there is a constitutional mandatory sentence, there is no need
for the trial court to justify, under Article 894.1, a sentence it is legally
required to impose. In addition, to rebut the presumption that the
mandatory sentence is constitutional, the defendant must clearly and
convincingly show that because of unusual circumstances this

9

defendant is a victim of the legislature’s failure to assign sentences
that are meaningfully tailored to the culpability of the offender, the
gravity of the offense, and the circumstances of the case. In this case,
the defendant has not sufficiently demonstrated he is the
“exceptional” defendant for which downward departure from the
statutory minimum sentence is required.

Furthermore, arguments that the mandatory life sentence for
second degree murder is a violation of the prohibition against
excessive punishment contained in the Louisiana constitution have
been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982);
State v. Brooks, 350 So.2d 1174 (La.1977); State v. Thornton, 36,757
(La.App.2d Cir.01/29/03), 836 So.2d 1235, writ denied, 2003-0861
(La.10/31/03), 857 So.2d 474.

State v. Gill, 40,915, pp. 7-8 (La.App. 2 Cir. 5/17/06), 931 So.2d 409, 413, writ

denied, 06-1746 (La. 1/26/07), 948 So.2d 165. See also State v. Cornejo-Garcia,

11-619 (La.App. 5 Cir. 1/24/12), 90 So.3d 458.

In this case, Defendant makes no showing that he is exceptional and,

therefore, entitled to a downward departure from the mandatory minimum

sentence. The sentence is not illegal, grossly disproportionate to the severity of the

offense, nor shocking to the sense of justice. This assignment of error is, therefore,

without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

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

it permitted certain witnesses to repeat statements that Defendant made to them

regarding the shooting death of his wife. In brief, Defendant does not make a

specific argument; he simply states that his right against self-incrimination was

violated by the admission of the statements. He references a page number in the

trial transcript wherein trial counsel objected, pursuant to La.Code Evid. art. 510,

to the testimony of a witness, Paul Quinney, and the testimonies of three other

individuals who encountered Defendant at the Veterans Administration (VA)

hospital and at Cabrini Hospital’s emergency intake.

10

Mr. Quinney testified that he was an administrative officer at the VA

hospital. He stated that he was at the main desk on May 19, 2010, when Defendant

came into the hospital with his infant son and stated that “he wanted to see a psych

doctor” for an evaluation. When he explained to Defendant that he could not just

check into the psych ward without a doctor’s authorization and that it had to be

done in the emergency room area, Defendant told him that he had been in a shoot-

out with the police and had been shot and that he had shot his wife in her “private”

and in the head. Mr. Quinney further explained that according to hospital

procedure, when a person came to the hospital with a stab or gunshot wound, the

VA police were to be summoned.

Anthony Francisco and Shawn Stephens were the security officers

Mr. Quinney called. They both testified that Defendant volunteered information as

they were attempting to ascertain the problem and to secure the infant, who was

only in a diaper and barefooted. Defendant told them that he thought his wife had

been cheating on him and that, besides being shot by some “dirty cops,” he had

also shot his wife.

Finally, Christopher Washington, an emergency intake technician at Cabrini

Hospital, testified that as he was prepping Defendant in the emergency room,

Defendant stated that his wife had been cheating on him, “so he unloaded a whole

clip on her ass.”

At trial, defense counsel argued that the above statements qualified under

testimonial privileges and that Defendant did not waive the privilege. Louisiana

Code of Evidence Article 510, the health care provider-patient privilege, in

pertinent part, provides:

11

A. Definitions. As used in this Article:

(1) “Patient” is a person who consults or is examined or
interviewed by another for the purpose of receiving advice, diagnosis,
or treatment in regard to that person’s health.

(2) “Health care provider” is a person or entity defined as such
in R.S. 13:3734(A)(1), and includes a physician and psychotherapist
as defined below, and also includes a person who is engaged in any
office, center, or institution referred to as a rape crisis center, who has
undergone at least forty hours of sexual assault training and who is
engaged in rendering advice, counseling, or assistance to victims of
sexual assault.

(3) “Physician” is a person licensed to practice medicine in any
state or nation.

....

(6) “Representative” of a physician, psychotherapist, or other
health care provider is:

(a) A person acting under the supervision, direction, control, or
request of a physician, psychotherapist, or health care provider
engaged in the diagnosis or treatment of the patient.

(b) Personnel of a “hospital,” as defined in R.S. 13:3734(A)(3),
whose duties relate to the health care of patients or to maintenance of
patient records.

(7) The definitions of health care provider, physician,
psychotherapist, and their representative include persons reasonably
believed to be such by the patient or his representative.

(8)(a) “Confidential communication” is the transmittal or
acquisition of information not intended to be disclosed to persons
other than:

(i) A health care provider and a representative of a health care
provider.

(ii) Those reasonably necessary for the transmission of the
communication.

(iii) Persons who are participating in the diagnosis and
treatment under the direction of the physician or psychotherapist.

(iv) A patient’s health care insurer, including any entity that
provides indemnification to a patient.

12

(v) When special circumstances warrant, those who are present
at the behest of the patient, physician, or psychotherapist and are
reasonably necessary to facilitate the communication.

(b) “Confidential communication” includes any information,
substance, or tangible object, obtained incidental to the
communication process and any opinion formed as a result of the
consultation, examination, or interview and also includes medical and
hospital records made by health care providers and their
representatives.

(9) “Health condition” is a physical, mental, or emotional
condition, including a condition induced by alcohol, drugs, or other
substances.

....

C. (1) General rule of privilege in criminal proceedings. In a
criminal proceeding, a patient has a privilege to refuse to disclose and
to prevent another person from disclosing a confidential
communication made for the purpose of advice, diagnosis or treatment
of his health condition between or among himself, his representative,
and his physician or psychotherapist, and their representative.

At trial, during the discussion on whether the above statements were

privileged, the record indicates that Defendant just wanted to check into the psych

ward for evaluation, that he never asked for treatment from the VA hospital for the

gunshot wound, and that he was not questioned by the two security guards. During

arguments, Defendant cited Moss v. State, 05-1963, p. 6 (La. 4/4/06), 925 So.2d

1185, 1191, and the trial court cited Prine v. Bailey, 42,282, p. 9 (La.App. 2 Cir.

8/15/07), 964 So.2d 435, 441, both for the language: “The principal purpose of the

healthcare provider-patient privilege is to encourage full disclosure by the patient

of his or her condition in order to ensure the proper diagnosis and treatment.”

The trial court denied Defendant’s requests to find the statements privileged

primarily for the reason that Defendant had volunteered the information to

everyone who would listen to him about how his wife was unfaithful and that he

had shot her. Furthermore, the trial court noted that this random dissemination of

information indicated that he did not, at the time, intend for the information to be

13

privileged. We agree with the trial court, particularly in the case of Mr. Quinney

and the two security officers. Defendant went to the main desk and asked to be

admitted to the psych ward; he did not ask to be treated for the gunshot wound to

his leg. While these witnesses may have been “representatives” or “personnel” of

the hospital to some degree, the VA hospital was not Defendant’s health care

provider in this case. After volunteering the information to these three persons, he

repeated the story again to a Pineville police officer, Detective Chapelle, who had

responded to the two security officers’ call, both before Defendant was Mirandized

and after.

In State v. Williams, 01-944 (La.App. 1 Cir. 12/28/01), 804 So.2d 932, writ

denied, 02-399 (La. 2/14/03), 836 So.2d 135, the first circuit did not find the

statements the defendant made to his doctor in the emergency room privileged

when the statements were made in front of the police officer who took him to the

hospital for treatment and stood five feet away. The first circuit noted:

Insofar as pertinent herein, [La.Code Evid. art.] 510 A(8)(a)
defines a confidential communication as one involving the transmittal
of “information not intended to be disclosed” to persons other than
certain delineated individuals involved in a patient’s diagnosis and
treatment.

On appeal, defendant argues the record does not support the
trial court’s conclusion that defendant could not have intended his
statements to be confidential because he knew Officer Reed was
present in the emergency room when he made the statements.
However, we note that Officer Reed testified he went into the
emergency room with defendant and stood in the examining room
only five to six feet away from him while Dr. Broussard spoke to
defendant. There also was testimony that defendant was alert and
aware of his surroundings at the time. Under these circumstances, the
trial court’s conclusion appears to be supported by the record.

Id. at 946-47.

In this case, Defendant was not treated at the VA hospital; however, he was

treated at Cabrini Hospital, and Christopher Washington was an emergency intake

14

technician. Mr. Washington testified that he was prepping Defendant for treatment

when Defendant made the statement that he had shot his wife. Mr. Washington

could qualify as a representative of Defendant’s health care provider in this case,

and the statement, under normal circumstances, could have been privileged.

However, in Williams, the first circuit also stated:

Nevertheless, even if the trial court erred in this respect, the
motion to suppress was properly denied on the alternate basis that, by
raising the issue of his sanity at the time of the offense, defendant
impliedly waived the physician-patient privilege as to statements he
made to Dr. Broussard. See La.Code Evid. art. 510 C(2)(a). These
statements, made shortly after the offense, were germane to the issue
of defendant’s mental condition since they tended to show he was
alert, coherent, responsive, and able to give details of the incident at
that time. See State v. Berry, 324 So.2d 822, 827-28 (La.1975), cert.
denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976); State v.
Aucoin, 362 So.2d 503, 505 (La.1978); State v. Brown, 619 So.2d
692, 695-96 (La.App. 4th Cir.1993). Moreover, any error in admitting
the testimony regarding defendant’s responses to Dr. Broussard was
harmless error beyond a reasonable doubt in view of the fact that
defendant repeated the substance of those responses in subsequent
statements he made to both Officer Reed and Detective Graham. See
La.Code Crim.P. art. 921.

Id. at 947.

In this case, even if the trial court erred concerning the testimony given by

Mr. Washington, as in Williams, the error was harmless in that Defendant had

repeated the statement that he had shot his wife to several people not involved with

treatment or diagnosis of his health care problem and to the police before and after

he was Mirandized. Therefore, we find no merit to this assignment of error.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues that appellate counsel was ineffective because he did not

challenge the sufficiency of the second degree murder conviction and the sentence.

Defendant’s argument consists of the following:

Appellant, Joseph Chehardy, is dumbstruck at how simple it would be
to raise issues to protect his appeal as of right. Because Mr. Bauman
could not see his inadvertence is going to cause a violation, he has

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thus violated the extrinsic standards of the due process of law.
([La.Code Crim.P. art. 912(C)(1)] supports appellant’s claim of
ineffective assistance of the appointed appellate counsel)[.] [P]lease
find Mr. Bauman in contempt.

Defendant makes no arguments as to what elements of the offense of second

degree murder were not proven by the State. Considering that Defendant

confessed he shot his wife in the head and in the “private” and that there was

testimony given at trial that the “clip” full of gunshot wounds were responsible for

her death, it is highly likely the evidence was more than sufficient. Defendant fails

to show how appellate counsel in this case was deficient in his performance or

representation of his interests.

With regard to the mandatory life sentence, as noted in the above pro se

assignment of error, Defendant failed to show that he was entitled to a reduction of

the sentence. Therefore, there is no merit to this assignment of error.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, Defendant asserts that the trial court erred

when it denied his motion to quash the indictment for failure to send defense

counsel notice that the “True Bill was returned on July 29, 2010[,] and an

arraignment set for August 6, 2010, all of which counsel was not advised until he

happened to be in Court on other matters.” In brief, Defendant argues that “[i]t is

mandated in trial court procedure that the trial court send notice to counsel as when

the meeting of the grand jurors take[s] place.” However, Defendant does not

source the “mandate,” nor do we find such a rule regarding same. The motion filed

on September 13, 2010, states: “Counsel shows that his client has obvious mental

problems that the State knew of or should have known of and that any notice to the

client by the State was not forwarded to counsel and should not be deemed as to

amount to constructive notice to counsel.” Whereas Defendant evidently received

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notice and defense counsel does not show that he had been appointed to represent

Defendant at the time, there is no merit to this assertion of error.

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues that the State erred, during voir dire, by using its

peremptory challenges to exclude men from the jury in order to stack the jury

panel with eight women “to fulfill the burden of proving [him] guilty” of

murdering his wife. We note that the voir dire was not designated to be included

in the record. While Defendant does not use the term, we must presume that he is

referring to gender discrimination. The factors needed to show a prima facie case

of gender discrimination in the jury selection are that the prosecutor’s challenges

were directed at a member of a cognizable group, that the challenges were

peremptory rather than for cause, and finally, a defendant must show

circumstances sufficient to raise an inference that the prosecutor struck the venire

person on account of being a member of that cognizable group. Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986); J.E.B. v. Alabama ex rel. T.B., 511

U.S. 127, 114 S.Ct. 1419 (1994); Hernandez v. New York, 500 U.S. 352, 111 S.Ct.

1859 (1991); and State v. Givens, 99-3518 (La. 1/17/01), 776 So.2d 443.

Furthermore, in Batson, 476 U.S. 79, the Supreme Court also noted that relevant

facts or circumstantial evidence of discriminatory intent include proof of disparate

impact and a pattern of strikes against jurors, as well as questions and statements

made during voir dire.

In brief, Defendant refers to the Written Peremptory Challenges forms,

which were included in the record, to support his case. While the voir dire

transcript was not included in the record, we note that a very detailed minute entry

of the voir dire, including the peremptory challenges, challenges for cause, and

selection of the jury was included in the record, and there were no objections made

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by Defendant to any of the peremptory challenges. Absent objections made at the

time so that the trial court could have addressed the issue, Defendant cannot now

appeal on this ground. “An irregularity or error cannot be availed of after verdict

unless it was objected to at the time of occurrence.” La.Code Crim.P. Art. 841(A).

PRO SE ASSIGNMENT OF ERROR NUMBER SIX

Finally, Defendant argues that trial counsel gave ineffective assistance. He

points out that “defense counsel presented no witnesses, no mental health records,

no evidence of provocation or any other presentation when asked by the court.” In

State v. Walton, 11-1085, pp. 6-7 (La.App. 3 Cir. 4/4/12), 87 So.3d 328, 332-33,

writ denied, 12-875 (La. 10/26/12), 99 So.3d 639, this court stated:

The Sixth Amendment of the U.S. Constitution provides a
defendant with assistance of counsel for his or her defense. See also
La. Const. art. 1, § 13. According to Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant seeking
to establish ineffective assistance of counsel must prove that 1) the
defense attorney’s performance was deficient and that 2) the
deficiency prejudiced the outcome of the trial.

With regard to the question of whether the defense attorney’s
performance was deficient, “defense attorneys are entitled to a strong
presumption that their conduct fell within the broad range of
reasonable professional assistance.” State v. James, 95-962, p. 5
(La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465 citing United States v.
Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) and
Strickland, 466 U.S. 668, 104 S.Ct. 2052.

Additionally, the defendant must demonstrate that the deficient
assistance of counsel prejudiced his defense. State v. Jones, 33,657
(La.App. 2 Cir. 8/23/00), 765 So.2d 1191, writ denied, 00-2779
(La.6/29/01), 794 So.2d 825. In short, the errors must have been so
serious as to deprive the defendant of a fair trial. Id., citing
Strickland, 466 U.S. 668, 104 S.Ct. 2052. It is not sufficient for a
defendant to show that the complained-of error had some conceivable
effect on the trial’s outcome. Id. Rather, the defendant is required to
establish that, but for the error, “there is a reasonable probability the
outcome of the trial would have been different.” Id. at 1199. See also
State v. Truehill, 09-1546 (La.App. 3 Cir. 6/2/10), 38 So.3d 1246.

In this case, Defendant does not indicate what witnesses should have been

presented or the substance of their testimony, whose mental health records should

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have been produced and what those records would have established, what evidence

of provocation was available, and how the evidence could have reasonably

changed the outcome of the trial. Defendant has failed to show what errors defense

counsel committed and how he was prejudiced by those errors. Therefore, we find

no merit to this assignment of error.

DISPOSITION

We affirm Defendant’s conviction of second degree murder and the sentence

imposed therefor. We likewise affirm Defendant’s convictions for aggravated

battery; however, Defendant’s sentences for aggravated battery are vacated, and

the case is remanded for resentencing with the trial court being instructed to

specify whether the sentences are to be served with or without hard labor.

Additionally, the trial court is directed to correctly inform the Defendant of the

post-conviction relief provisions of La.Code Crim.P. art. 930.8 at resentencing.

CONVICTIONS AFFIRMED;
SECOND DEGREE MURDER SENTENCE AFFIRMED;
AGGRAVATED BATTERY SENTENCES VACATED;
MATTER REMANDED FOR RESENTENCING
ON AGGRAVATED BATTERY CONVICTIONS
WITH INSTRUCTIONS.

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