State of Louisiana v. Eric J. Bello

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-19

STATE OF LOUISIANA

VERSUS

ERIC J. BELLO

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 12281-09
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and John E. Conery, Judges.

AFFIRMED WITH INSTRUCTIONS.

John F. DeRosier
District Attorney
Karen C. McLellan
Assistant District Attorney
14th Judicial District
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward J. Marquet
Louisiana Appellate Project
Post Office Box 53733
Lafayette, Louisiana 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Eric J. Bello

CONERY, J.

On March 12, 2008, Defendant, Eric J. Bello, was indicted for the second

degree murder of his first cousin, Pauline Bryant. A sanity hearing was held on

August 19, 2009, and again on May 19, 2010. Following the hearings, the trial

court found Defendant competent and capable to proceed to trial. On November

18, 2010, Defendant changed his not-guilty plea to not guilty by reason of insanity.

On November 7, 2011, a second “Motion to Appoint Sanity Commission”

was filed. Hearings were held on January 1, 2012, and September 12, 2012. On

October 31, 2012, the trial court again adjudicated Defendant competent and

capable to proceed to trial. Defendant was subsequently found guilty of second-

degree murder. He was sentenced to life imprisonment without benefit of parole,

probation, or suspension of sentence.

Defendant has perfected a timely appeal wherein he alleges that the trial

court erred when it adjudicated him competent and capable to proceed to trial. For

the following reasons, we find that Defendant’s assignment of error lacks merit.

FACTS

On November 4, 2008, Defendant shot his first cousin, Pauline Bryant. Ms.

Bryant died as a result of the gunshot wound. Defendant remained with Ms.

Bryant’s body for about forty-eight hours before calling 911.

ERRORS PATENT

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

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

there is one error patent.

Defendant was informed at sentencing that he had two years within which to

file an application for post-conviction relief. Louisiana Code of Criminal

Procedure Article 930.8(A) provides that the defendant has two years after the

conviction and sentence become final to seek post-conviction relief. In line with

this court’s past jurisprudence, we find the trial court’s advisement insufficient and

we direct the trial court to inform Defendant of the provisions of La.Code Crim.P.

art. 930.8(A) by sending appropriate written notice to Defendant within thirty days

of the rendition of this opinion and to file written proof in the record that

Defendant received the notice. State v. Conway, 12-525 (La.App. 3 Cir. 11/7/12),

101 So.3d 1132; State v. Celestine, 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d

573; State v. Grace, 10-1222 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, writ denied,

11-961 (La. 10/21/11), 73 So.3d 382.

ASSIGNMENT OF ERROR

Defendant argues that the trial court erred when it adjudicated him capable

of assisting in his defense. He asserts that he has proven by a preponderance of the

evidence to have a “highly probable diagnosis of Paranoid Schizophrenia,” which

rendered him incapable of assisting in his own defense and, hence, not competent

to stand trial.

In State v. Bennett, 345 So.2d 1129, 1138 (La.1977), the Louisiana Supreme

Court stated that the appropriate considerations in determining whether the accused

is fully aware of the nature of the proceedings include:

whether he understands the nature of the charge and can
appreciate its seriousness; whether he understands what
defenses are available; whether he can distinguish a
guilty plea from a not guilty plea and understand the
consequences of each; whether he has an awareness of
his legal rights; and whether he understands the range of
possible verdicts and the consequences of conviction.

In addition, the supreme court provided factors to consider in determining an

accused’s ability to assist in his defense:

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whether he is able to recall and relate facts pertaining to
his actions and whereabouts at certain times; whether he
is able to assist counsel in locating and examining
relevant witnesses; whether he is able to maintain a
consistent defense; whether he is able to listen to the
testimony of witnesses and inform his lawyer of any
distortions or misstatements; whether he has the ability to
make simple decisions in response to well-explained
alternatives; whether, if necessary to defense strategy, he
is capable of testifying in his own defense; and to what
extent, if any, his mental condition is apt to deteriorate
under the stress of trial.

Id.

The supreme court further provided that “[t]he decision as to a defendant’s

competency to stand trial should not turn solely upon whether he suffers from a

mental disease or defect, but must be made with specific reference to the nature of

the charge, the complexity of the case and the gravity of the decisions with which

he is faced.” Id. Moreover, the supreme court stated:

The defense carries the burden of proving by a clear
preponderance of the evidence that, as a result of a mental disease or
defect, he lacks the capacity to understand the proceedings against
him or to assist in his defense. Moreover, the judge’s determination
of a defendant’s present mental capacity is entitled to great weight and
his ruling will be reversed only if it is clearly erroneous.

Id. at 1132 (citations omitted).

In the instant case, at the August 19, 2009 sanity commission hearing, Dr.

James M. Anderson, a Lake Charles medical doctor board-certified in psychiatry

and neurology, testified that he evaluated Defendant on May 22, 2009. He

conducted a fifty-five minute session with Defendant where he assessed

Defendant’s general fund of knowledge and medical and psychiatric history. He

also had Defendant complete a McGarry Competency Assessment test. Dr.

Anderson stated that although Defendant was sometimes “inappropriate and

somewhat guarded and evasive,” he was able to understand the role of his attorney

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and knew the difference between guilty and not guilty by reason of insanity. He

also knew the difference between the participants, such as the judge, jury, and

witnesses. He knew that he was charged with second-degree murder and the

consequences if he was found guilty.

Dr. Anderson reported that Defendant told him he was a college graduate

with a degree in business management from Brigham Young University in Hawaii.

Dr. Anderson stated that the medications Defendant was taking at the time of the

evaluation were Hydrochlorothiazide, Amlodipine, Enalapril, and Zoloft, which

were medications for anti-hypertension and depression. Dr. Anderson found

Defendant to be cooperative but calculating in his answers. Dr. Anderson stated

that when he asked Defendant if he had a history of any psychiatric hospitalization,

Defendant said, “[c]ould you be more specific with the question?” In the context

of the evaluation, Dr. Anderson found Defendant evasive and manipulative.

However, as noted, Dr. Anderson found him competent to stand trial and

memorialized his findings in a formal letter that was introduced into evidence.

Dr. Charles Robertson, a Lake Charles neuropsychologist, testified on the

issue of Defendant’s capacity to assist in his defense at the May 19, 2010 hearing.

Dr. Robertson stated that he saw Defendant on May 8, 2009, in his office for

approximately an hour. Dr. Robertson also found Defendant to be competent to

proceed to trial. Dr. Robertson stated that Defendant reported no history of any

psychosis but that he had been treated for depression. He reviewed the drugs

Defendant reported taking and noted that although he believed that Defendant

benefited from the medication, it would not necessarily impede his ability to attend

trial if he were not taking the medication. Dr. Robertson also memorialized his

conclusion in a formal letter submitted to the trial court and filed into evidence.

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On November 7, 2011, Defendant filed another “Motion to Appoint Sanity

Commission.” In the motion, he asserted that he had been evaluated by a Dr.

Theodore Friedberg, who concluded that Defendant was unable to assist defense

counsel because it was highly probable that Defendant suffered from paranoid

schizophrenia. The trial court granted the motion and appointed Drs. Anderson

and Robertson to re-evaluate Defendant. The court set a sanity hearing for January

25, 2012.

At that hearing, Dr. Anderson reported that he saw Defendant on three

separate occasions: May 22, 2009, February 23, 2010, and on January 12, 2012.

Again, after the January 12, 2012 meeting, Dr. Anderson concluded that Defendant

was competent to proceed to trial. He submitted a letter to the trial court with his

findings that was filed in evidence.

In his written report to the trial court, Dr. Anderson noted that Defendant

was taking several more drugs since he first interviewed him. At the hearing, he

testified:

When I saw him on January 12th, he was taking Depakote,
which is an anti-seizure medication; but I’m assuming it’s used in this
case as a mood-stabilizing medication used in bipolar disorder.

His second medication was Risperdal, which is anti-psychotic
medication, which is also used not only for schizophrenia but for
bipolar disorder.

He was taking Zoloft, an antidepressant medication; Vistaril,
which is used for most likely insomnia. He was taking 50 milligrams
at night and just taking two blood pressure medications.

Dr. Anderson stated that Defendant told him that he had been diagnosed

with a schizophrenic bipolar condition, which, Dr. Anderson testified, was not a

real diagnosis. However, Dr. Anderson stated that even though he was taking the

medications listed, Defendant still met the Bennett criteria. It was the doctor’s

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opinion that Defendant was cognitively intact. When asked by defense counsel if

being cognitively intact meant that one necessarily met the Bennett criteria, Dr.

Anderson answered that it did not. He explained, however, that he believed

Defendant attempted to purposefully control the interview to manipulate him. He

stated that when Defendant was asked questions concerning his history of mental

health or current status, Defendant would pause to think about it and would answer

with questions like “what type of details are you looking for?”

Because Dr. Robertson was deceased by the time of the hearing, the sanity

hearing was continued until such time as another qualified doctor had the

opportunity to evaluate Defendant. The court appointed Dr. Garrett Ryder.

At the scheduled hearing on September 12, 2012, Dr. Ryder testified

regarding Defendant’s mental capacity to proceed to trial. His report was

submitted to the trial court and filed into evidence. The report indicated that

Defendant was able to proceed to trial pursuant to the criteria set out by Bennett.

At the hearing, he indicated that he had received no medical history on Defendant.

He stated that Defendant self-reported that he was suffering from schizophrenia or

bipolar disorder. He stated that from his interview with Defendant, he “suspected

that he probably did have a schizophrenic spectrum condition.” However, he

explained he was not convinced that Defendant suffered from schizophrenia or a

bipolar disorder. While Dr. Ryder felt that “[Defendant] was sufficiently nervous,

restless, and autistic in some responses . . . he was sophisticated enough,

intellectually, to be able to sort of manufacture those.”

Defense counsel then informed the trial court that Defendant desired Dr.

Friedburg to testify, but he was not immediately available. The following

conversation then took place between the trial court and defense counsel:

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THE COURT: Have you ever spoken with Dr. Friedberg?

MR. MCHALE: No, sir, I haven’t. I’ve only read his reports, and I’ve
spoken to –

THE COURT: Does [sic] his reports indicate that your client would
be – that he would testify contrary to what we heard from Dr. Ryder
and Dr. Anderson?

MR. MCHALE: Perhaps, yes, sir.

THE COURT: I don’t want to hear perhaps.

MR. MCHALE: Well --

THE COURT: You read his report?

MR. MCHALE: Yes, sir.

THE COURT: It either says he’s competent, or he’s not competent, or
I can’t tell.

MR. MCHALE: At the time of the report, Mr. Bello – upon one
meeting, Mr. Bello became agitated and refused to speak with Dr.
Friedberg. But Dr. Friedberg has stated that he feels that my client has
chronic paranoid schizophrenic disorder.

THE COURT: Would that prohibit [him] from assisting his counsel in
his defense at trial?

MR. MCHALE: Yes, sir.

THE COURT: He believes that?

MR. MCHALE: Well – and he doesn’t specifically state that.

The State then informed the trial court that Dr. Friedburg’s report addressed

the issue of the not-guilty-by-reason-of-insanity plea rather than whether

Defendant was competent to proceed to trial. The trial court continued the hearing

until October 31, 2012, to allow Defendant to “present any witnesses that they

have in connection with the determination of whether or not this defendant has the

competency to proceed to trial.”

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A minute entry dated October 31, 2012 indicates that the hearing was held.

However, no other witnesses were presented, and the trial court found Defendant

capable to assist defense and proceed to trial.

In brief, Defendant argues that Defendant’s “extraordinary, bizarre

behavior” coupled with the medical opinions supported a conclusion of

incompetence to stand trial. The “extraordinary, bizarre behavior” he refers to was

testimony and evidence presented at trial regarding the killing of the victim, what

he said to the 911 operator when he called to report that he had just shot her, how

long after the shooting until he called 911, the books on infamous murderers found

in his house, the fact he left a last will and testament on a chalk board at the scene,

portions of his testimony wherein he referred to the victim as his wife, and, when

asked at trial for the reason he killed the victim, he responded, “[c]an you be more

specific with the question, please.” He argues that “[t]his illustrates that as a

practical matter Mr. Bello could do little to assist in his defense and as

demonstrated at trial did not assist in his own defense due to his mental condition

of Paranoid Schizophrenia.”

The issue of not guilty by reason of insanity relates to a defendant’s inability

to distinguish right from wrong at the time he committed the offense and is to be

considered by the fact finder at trial. La.R.S. 14:14; La.Code Crim.P. art. 650, et

seq. That issue is not before the court and is not part of this appeal. In contrast,

the question of competency to proceed to trial addresses whether a defendant had

the capacity to understand the proceedings against him and assist in his defense

and is an issue for the trial court to resolve before trial. La.Code Crim.P. arts. 641

and 647.

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We find that Defendant has failed to prove by a preponderance of the

evidence that, as a result of a mental disease or defect, he lacked the capacity to

understand the proceedings against him or to assist in his defense. The trial court

was asked to assess the evidence given prior to the trial to determine whether

Defendant had the capacity to proceed to trial. Three qualified experts evaluated

Defendant over a two-year period and determined that he was able to assist in his

own defense and had the capacity to proceed to trial. All three experts testified at

the sanity hearings. Dr. Friedburg did not testify at the hearings, nor did he testify

at trial. Therefore, we find that Defendant’s assignment of error lacks merit.

DISPOSITION

We affirm Defendant’s conviction and sentence. Additionally, we direct the

trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by

sending appropriate written notice to Defendant within thirty days of the rendition

of this opinion and to file written proof in the record that Defendant received the

notice.

AFFIRMED WITH INSTRUCTIONS.

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