State of Louisiana v. Mark Wayne Thibodeaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1002

STATE OF LOUISIANA

VERSUS

MARK WAYNE THIBODEAUX

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 8991-12
HONORABLE RICHARD E. WILSON, DISTRICT JUDGE PRO TEMPORE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Billy H. Ezell, and James T. Genovese,
Judges.

REMANDED WITH INSTRUCTIONS.

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Mark Wayne Thibodeaux


Judge Richard E. Wilson was appointed by the Louisiana Supreme Court to serve as
judge pro tempore of Division “F” of the Fourteenth Judicial District Court from November 1,
2013 through January 1, 2014, as a result of the retirement of Judge Wilford D. Carter, Sr.

Mark W. Thibodeaux
Louisiana State Penitentiary
Walnut 4
Angola, LA 70712
PRO-SE

John F. DeRosier
District Attorney
Karen C. McLellan
Assistant District Attorney
Fourteenth Judicial District
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

PETERS, J.

The defendant, Mark Wayne Thibodeaux, appeals his conviction of two

counts of second degree murder, violations of La.R.S. 14:30.1, and one count of

attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1.

For the following reasons, we remand the matter to the trial court with instructions

to complete the record by producing and ruling on certain pretrial motions.

DISCUSSION OF THE RECORD

In the early morning of January 4, 2012, officers of the City Police

Department of Lake Charles, Louisiana, responded to a 911 call concerning a

disturbance in the 1100 block of North Prather Street. Upon arrival at the scene,

they first discovered the body of Bridget Tillman Pryor lying in the front yard of

the residence of Joanne Browne, 1103 North Prather Street. After further

investigation, the officers went into Ms. Pryor’s home at 1110 North Prather Street

and discovered a second body, that of Carla Yvette Ledoux.

The information derived after the discovery of the second victim led the

officers to identify Joseph Newman as a person of interest in their investigation.

The officers were able to ascertain Mr. Newman’s address, and when they arrived

at that address, they found Mr. Newman in his bed bleeding profusely from a

number of stab wounds. Mr. Newman became the principal source of the

information that ultimately connected the defendant to the criminal offenses now

before the court.

On March 22, 2012, the Calcasieu Parish Grand Jury indicted the defendant

for the second degree murder of Ms. Pryor and Ms. Ledoux and for the attempted

second degree murder of Mr. Newman. Six days later, on March 28, 2012, the

defendant appeared in open court with counsel for arraignment on the charges and

entered not guilty pleas to all three counts. At the arraignment proceeding, the trial

court set November 26, 2012, as the date for the trial on the merits to begin. On

November 26, 2012, the defendant’s counsel requested a continuance because

pretrial motions had yet to be filed. The trial court continued the trial; ordered that

all pretrial motions be filed within thirty days; set February 6, 2013, as the date to

hear motions that might be filed; and rescheduled the trial on the merits for May 20,

2013.

Neither the defendant nor his counsel filed any pretrial motions within the

thirty-day deadline, and no hearing was held on February 6, 2013. Instead, on

February 19, 2013, the defendant’s counsel filed a motion seeking to have a sanity

commission determine the defendant’s ability to assist in his own defense and the

degree of his understanding of the proceedings against him. The trial court

appointed a sanity commission that same day and set a March 20, 2013 hearing on

that mental capacity issue. The hearing was subsequently continued to May 1,

2013, at which time the trial court rendered judgment, finding that the defendant

sufficiently understood the proceedings against him and that he had the ability to

assist in his own defense.

During the pendency of the sanity commission proceedings, the defendant

filed three pro se motions: (1) a motion to quash the indictment filed April 26,

2013; (2) a motion to suppress filed April 29, 2013; and (3) a motion for a speedy

trial filed April 30, 2013. However, none of these motions were ever considered

by the trial court. Instead, the trial court minutes of May 20, 2013, reflect that the

defendant was “available for trial,” but the trial did not begin that day. Instead, the

trial court minutes of the next day reflect that the state moved for a continuance

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based on the assertion that the defendant’s counsel was involved in another trial in

another courtroom that same day.

The trial court granted the continuance and reset the trial on the merits for

September 16, 2013. Slightly over a month later, on June 27, 2013, the defendant

filed a pro se motion seeking to have his appointed counsel recused. No hearing

was held on that motion, but on September 1, 2013, the defendant’s counsel filed a

motion to continue the September 16, 2013 trial date based on the fact that he was

withdrawing as the defendant’s counsel and the newly appointed counsel would

need time to prepare for trial. The motion did not mention the pending motion to

recuse him, and it simply asserted that he was leaving employment with the

Calcasieu Parish Public Defender’s Office effective September 1, 2013. The trial

court granted the motion for continuance and reset the trial on the merits for

February 10, 2014. Six days later, on September 7, 2013, the defendant filed a

second pro se motion to quash the indictment.

A September 16, 2013 trial court minute entry reflects that the trial court

reaffirmed the February 10, 2014 setting, and also set a status hearing for

December 9, 2013. The trial court minutes of that date do not mention that status

hearing. Instead, the minutes reflect that on motion of the state, the trial court

“refixed” the trial date to February 10, 2014.

Soon after the defendant’s new counsel enrolled in September of 2013, he

filed a second motion for a bill of particulars and a second discovery motion. 1 The

state responded to these motions with extensive filings providing the defendant

with investigative information.

1
The defendant’s first counsel filed similar motions on November 29, 2012, and the state
responded to those motions on February 7, 2013.

3

A three-day jury trial began on February 11, 2014, and resulted in the

defendant’s conviction on all three counts. However, before the jury selection

process began, the trial court commented that there were some preliminary matters

that needed to be addressed, and the defendant’s trial counsel responded to that

comment in the following manner:

That is correct, Your Honor. On behalf of Mr. Mark
Thibodeaux, he has objections to any introduction of any information
regarding a mental health examination that he said he did not consent
to. He has objections to a Motion to Quash that he filed in proper
person stating that he has not received a response as it relates to
whether it was granted or denied.

He has objections regarding a Motion to Suppress. He hasn’t
had a hearing on either of those two matters and he’s objecting to the
continuation of these proceedings without such hearings.

The defendant’s trial counsel went on to assert to the trial court that when the pro

se motions were filed, the defendant was incarcerated, but did speak to his previous

appointed counsel concerning the motions.

The trial court’s only response to the lack of hearing on these preliminary

motions was that “[t]hose objections are noted for the record.” Thereafter, the jury

selection process began.

On March 12, 2014, the trial court sentenced the defendant to serve life

imprisonment at hard labor without the benefit of parole, probation, or suspension

of sentence on each of the second degree murder convictions; and to serve twenty-

five years at hard labor without the benefit of parole, probation, or suspension of

sentence on the attempted second degree murder conviction. The trial court

ordered that the sentences run concurrent to one another. Thereafter, the defendant

perfected the appeal now before us.

Initially, the defendant’s appellate counsel asserted two assignments of error:

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1. The evidence is insufficient to support the guilty verdicts of second
degree murder in this case.

2. The State failed to establish that Mark Thibodeaux intended to kill
Joseph Newman; therefore, the State failed to meet its burden of
proving Mark Thibodeaux is guilty of attempted second degree
murder.

The defendant followed his appeal counsel’s filing by filing a pro se brief wherein

he assigned an additional seven assignments of error:

1. The evidence was insufficient to the finding of guilty as charge[d],
LSA-R.S. 14:30.1, two (2) counts.

2. The evidence was insufficient to the finding of guilty as charge[d],
LSA-R.S. 14:27-30.1, one (1) count.

3. Out-of-court identification procedure was overly suggestive and
led to a substantial likelihood of irreparable misidentification –
Absent confrontation twenty-five (25) months later . . . tainted and
corrupt in-court identification. See e.g. Manson v. Brathwaite,
supra. . .

4. Court renunciated and relinzuished its obligation and constition[sic]
duty . . . to administer “due process” and to comport to fair procedure
- insidiously deliberate, failing to answer pro se pre-trial motions –
denying defendant’s constitutional rights . . . [“]Due Process.”

5. The court has failed (erred) to comply with Federal and State
Constitutions . . . Statutory laws and Rules of Court Procedure – being
in violation of “Brady Rule.”

6. Court erred in allowing the admission of inadmissible evidence and
irrelevant . . . knife and wig . . .

7. Denied “Assistance of Counsel” . . .

After the defendant filed his pro se pleading, his appellate counsel filed the

following supplemental assignment of error:

1. The convictions in this case should be vacated and this case
remanded for further proceedings since Mark Thibodeaux’s pro se
motions are not included in the appeal and although filed, were not
disposed of prior to trial and cannot now be located for inclusion in
the record.

5

On April 2, 2014, the defendant filed a pro se motion with the trial court

seeking the production of the trial and sentencing transcript as well as “Answers to

Pro Se Motions and Pre-Trial Proceedings.” Among the pending pro se pleadings

he claimed to have filed were:2

4-26-13 Motion to Quash Indictment
4-29-13 Motion to Suppress
4-30-13 Motion for Speedy Trial
6-27-13 Motion to Recuse Attorney of Record
7-25-13 Letter, re counsel
9-7-13 Motion to Quash
10-25-13 Writ of Mandamus-Recusal of Attorneys

When the trial court initially failed to set a hearing on this motion, the

defendant filed a pro se application for supervisory writs to this court and was

granted relief. On July 22, 2014, this court issued the following disposition:

WRIT GRANTED AND MADE PEREMPTORY: Information
obtained from the Calcasieu Parish Clerk’s Office indicates that
Relator’s “Motion for Production of Trial Transcript, and Sentencing
Transcript, and Answers to Pro Se Motions and Proceedings” was
received and filed with their office on April 2, 2014. Accordingly,
Relator’s application is granted for the sole purpose of ordering the
trial court to rule on his “Motion for Production of Trial Transcript,
and Sentencing Transcript, and Answers to Pro Se Motions and
Proceedings” by August 21, 2014, and to provide this court with a
copy of its ruling.

State v. Thibodeaux, 14-702 (La.App. 3 Cir. 7/22/14) (unpublished opinion).

The trial court did not hold a hearing within the time limit set by this court

and finally set an October 10, 2014 hearing date by written order executed

September 12, 2014. In setting this hearing, the trial court did not comply with the

order of this court to rule on the motion. Instead, the trial court set the hearing to

“discuss the merits of petitioner’s motion.”

2
Other pleadings were listed in the defendant’s motion, but issues arising from the
production of these have been resolved.

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At the October 10, 2014 hearing, the defendant appeared in proper person by

video transmission from the state penitentiary facility to which he had been

assigned.3 When questioned by the trial court, he explained that he needed the

requested documents because they were essential to his efforts in seeking appellate

review. Counsel for the state informed the trial court that the state had no

opposition to the defendant being provided with the documents, but he understood

that the transcript had yet to be completed. The trial court then ordered that the

defendant “receive a copy of the things that [he] requested” as soon as the

transcript was completed. The transcript had been filed in this court on September

23, 2014.

The transcript filed with this court did not contain the motions and

documents listed in the defendant’s April 2, 2014 pro se motion as listed above.

On November 10, 2014, the defendant’s appellate counsel filed a motion to

supplement the record such that those seven pleadings would be included for this

court’s review. This court issued an order on November 20, 2014, directing the

Calcasieu Parish Clerk of Court to “prepare and lodge with this Court the above-

referenced supplemental record containing the materials listed above by November

26, 2014.” The Calcasieu Parish Clerk of Court’s office responded to our order but

did not supplement the record with the missing pleadings. Instead, it provided an

affidavit of a deputy clerk of court which reads as follows:

I HEREBY verify that the requested Pro Se documents listed in
the attached order from Third Circuit, Court of Appeal were filed into
the Clerk of Court’s office and sent to (Retired Judge) Wilford Carter
and/or his law clerk in 2013 and has not been ruled upon nor returned

3
The record contains a copy of a letter from the Louisiana Appellate Project to the
Calcasieu Parish Clerk of Court notifying that office of the appointment of the defendant’s
appellate counsel. However, the record contains no evidence that the defendant’s counsel of
record was notified of the October 10, 2014 hearing.

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to the Clerk of Court as of this 26th Day of November, 2014. Upon a
thorough and complete search of said documents, by law clerk Ashley
Boutte for Judge Sharon Wilson, said documents cannot be located at
the 14th JDC.

No additional filings have been submitted to this court relative to the content

of these pleadings. Furthermore, neither the defendant nor the state have attached

copies of the missing documents to the briefs, nor have they attempted to

summarize the issues raised by each document.

OPINION

Before this court can address the merits of the assignments of error directed

toward the result of the jury trial, we must first address the assignments of error

directed at the failure of the trial court to rule on the missing pretrial motions

before trial on the merits. These are the issues raised by the defendant’s fourth pro

se assignment of error and his appellate counsel’s supplemental assignment of

error.

The pretrial pleadings at issue include two motions to quash, one motion to

suppress, one motion for a speedy trial, and three pleadings addressing the recusal

of the defendant’s trial counsel. While we first note that not only are these

pleadings not in the record before us, but the defendant has not provided this court

with copies, does not assert what issues were raised in these pleadings, and does

not assert that the pleadings are unavailable. Still, the response of the Calcasieu

Parish Clerk of Court to the supplementation order of this court establishes that

they were filed by the defendant as he asserts and that the original pleadings were

lost at the trial level. Furthermore, the record before us establishes that the issues

raised in the pleadings were never addressed of at the trial court level.

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Louisiana Code of Criminal Procedure Article 521 provides the following

with regard to pretrial motions:

A. Pretrial motions shall be made or filed within fifteen days
after arraignment, unless a different time is provided by law or fixed
by the court at arraignment upon a showing of good cause why fifteen
days is inadequate.

B. Upon written motion at any time and a showing of good
cause, the court shall allow additional time to file pretrial motions.

C. If by pretrial motion the state or the defendant requests
discovery or disclosure of evidence favorable to the defendant, then
the court shall fix a time by which the state or the defendant shall
respond to the motion.

As previously noted, none of the missing pleadings were filed within fifteen

days of arraignment, nor were they filed within the time limits established by the

trial court. Thus, they are all untimely “unless a different time is provided by law”

for their filing. Id. Additionally, when a defendant proceeds to trial without

objecting to the trial court’s failure to rule on a pending motion, he waives any

further objections to the trial court’s failure to dispose of that motion. See State v.

Jennings, 07-150 (La.App. 3 Cir. 5/30/07), 958 So.2d 144, writ denied, 07-1460

(La. 1/7/08), 973 So.2d 731.

Motion to Quash

The motion to quash is the vehicle by which a defendant raises defenses

prior to trial. La.Code Crim.P. art. 531. Ten general grounds for such a motion are

set forth in La.Code Crim.P. art. 532, and five special grounds directly addressing

a grand jury indictment are set forth in La.Code Crim.P. art. 533.4 The defendant

may file motions to quash based on eight of the ten general grounds set forth in

4
Louisiana Code of Criminal Procedure Article 534 identifies two special grounds for
quashing a bill of information. However, those grounds are not applicable to the matter before
us as the defendant was charged by grand jury indictment.

9

La.Code Crim.P. art. 532 “at any time before commencement of the trial.”

La.Code Crim.P. art. 535(A) and (B). All other motions to quash “shall be filed in

accordance with Article 521.” La.Code Crim.P. art. 535(C).

At the beginning of the trial, the defendant’s trial counsel objected to the

trial court proceeding with the trial on the merits without ruling on the motions to

quash. Thus, he preserved further objections to the trial court’s failure to dispose

of those motions.

Motion to Suppress

The motion to suppress evidence or to suppress a confession or statement on

constitutional grounds is provided for by La.Code Crim.P. art. 703. Concerning

the time limitations for filing such a motion, La.Code Crim.P. art. 703(C) provides:

A motion filed under the provisions of this Article must be filed
in accordance with Article 521, unless opportunity therefor did not
exist or neither the defendant nor his counsel was aware of the
existence of the evidence or the ground of the motion, or unless the
failure to file the motion was otherwise excusable. The court in its
discretion may permit the filing of a motion to suppress at any time
before or during the trial.

The trial court need only hold an evidentiary hearing on the motion to suppress

“when the defendant alleges facts that would require the granting of relief.”

La.Code Crim.P. art. 703(E)(1).

As is the case with the two pro se motions to quash, the defendant’s

objection at the beginning of the trial preserved further objections to the trial

court’s failure to dispose of that motion.

Motion for Speedy Trial

This motion is authorized by La.Code Crim.P. art. 701 and provides two

dispositional procedures for a filed motion. No hearing is required if the motion is

“accompanied by an affidavit by defendant’s counsel certifying that the defendant

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and his counsel are prepared to proceed to trial within the delays set forth in [the]

Article.” La.Code Crim.P. art. 701(D). If the motion meets this requirement, the

trial of a felony must commence within the delays set forth in La.Code Crim P. art.

701(D)(1). If the motion is not accompanied by the affidavit of the defendant’s

counsel, the trial court is required to hold a contradictory hearing on the motion

within thirty days. La.Code Crim.P. art. 701(F).

However, the defendant did not timely object to the trial court’s failure to

rule on this motion, and by proceeding to trial, waived any objection thereto.

Jennings, 958 So.2d 144. Thus, we find no merit in the defendant’s arguments

addressing the failure of the trial court to rule on the motion for speedy trial.

Pleadings to Remove Trial Counsel

Louisiana Constitution Article 1, § 13 provides, in pertinent part, that in a

criminal prosecution “[a]t each stage of the proceedings, every person is entitled to

assistance of counsel of his choice, or appointed by the court if he is indigent and

charged with an offense punishable by imprisonment.” In the criminal prosecution

that is the subject of this appeal, the defendant was, and still is, represented by

appointed counsel. However, the Louisiana Code of Criminal Procedure does not

directly address the situation where a defendant wishes to remove his appointed

counsel other than to say that “[t]he court may assign other counsel in substitution

of counsel previously assigned or specially assigned to assist the defendant at the

arraignment.” La.Code Crim.P. art. 515.

We need not reach the merits of the pleadings addressing any recusal issue

because, as was the case with his motion for a speedy trial, the defendant did not

timely object to the trial court’s failure to rule on these pleadings, and by

proceeding to trial, waived any objection thereto. Jennings, 958 So.2d 144.

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Additionally, any issues arising from the first two pleadings addressing recusal

were rendered moot by the defendant’s first counsel’s withdrawal as his attorney

on September 1, 2013. Thus, we find no merit in the defendant’s arguments

addressing these pretrial filings.

Disposition of the Motions to Quash and Motion to Suppress

We are left with a situation where the defendant filed two motions to quash

and one motion to suppress, the trial court failed to dispose of these motions before

trial, and the defendant timely objected to the failure of the trial court to so rule.

At the same time, we have an incomplete record before us that does not contain

even copies of these motions and are faced with a situation where nothing has been

provided to this court concerning their content. When this court granted the

defendant supervisory writ relief on July 22, 2014, we returned the matter to the

trial court with orders to rule on the defendant’s pleading which addressed the pro

se motions, and the trial court did not comply as ordered. Instead, it simply

ordered that the defendant be provided with a copy of the trial transcript.

Part of the confusion in the failure of the trial court to address the pro se

issues, and a fact that has made this litigation more complicated is the involvement

of three trial judges instead of one. The litigation was originally assigned to Judge

Wilford Carter of the Fourteenth Judicial District. According to the affidavit of the

Office of Clerk of Court, the pleadings at issue were submitted to Judge Carter’s

office and never returned to the Clerk’s office. To make matters more

complicated, Judge Carter retired before the trial on the merits; Judge Richard

Wilson, who was appointed judge pro tempore to serve in Judge Carter’s place

pending the election of Judge Carter’s successor, presided at the defendant’s trial

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and sentenced the defendant; and Judge Sharon Wilson, who was elected to

succeed Judge Carter, has presided over a number of post-trial matters.

We also note that two of the three pro se motions at issue were filed by the

defendant after his former counsel filed a motion for the appointment of a sanity

commission and before the issues raised by that motion were resolved. Louisiana

Code of Civil Procedure Article 642 provides, in pertinent part, that “[w]hen the

question of the defendant’s mental incapacity to proceed is raised, there shall be no

further steps in the criminal prosecution, except the institution of prosecution, until

the defendant is found to have the mental capacity to proceed.” However, we find

any error associated with the untimely filing of the motions is harmless error. See

State v. Francois, 05-1385 (La.App. 3 Cir. 4/5/06), 926 So.2d 744, writ denied, 06-

1048 (La. 1/12/07), 948 So.2d 138.

In State v. Frank, 99-553, pp. 20-21 (La. 1/17/01), 803 So.2d 1, 19-20, the

supreme court established three approaches to reviewing incomplete record claims:

Article I, § 19 of the Louisiana Constitution guarantees
defendants a right of appeal “based upon a complete record of all the
evidence upon which the judgment is based.” Material omissions
from the transcript of the proceedings at trial bearing on the merits of
an appeal will require reversal. See State v. Robinson, 387 So.2d 1143
(La.1980) (reversal required when record failed to contain the
testimony of a state and defense expert witness); State v. Ford, 338
So.2d 107 (La.1976) (reversal required when record was missing the
testimony of four state witnesses and the voir dire of prospective
jurors). On the other hand, inconsequential omissions or slight
inaccuracies do not require reversal. See State v. Goodbier, 367 So.2d
356, 357 (La.1979) (reversal not required when record does not
include a transcript of the voir dire examination and affidavit of court
reporter indicated that counsel made no objections during voir dire).
Finally, a defendant is not entitled to relief because of an incomplete
record absent a showing of prejudice based on the missing portions of
the transcripts. State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758
So.2d 749, 773 (citing State v. Hawkins, 96-0766 (La.1/14/97), 688
So.2d 473).

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Unfortunately, we cannot categorize the missing pleadings in any one of the three

categories described by the supreme court because we do not know the content of

the pleadings. Thus, we cannot say whether the missing pleadings are material or

inconsequential omissions; nor can we determine whether the defendant has been

prejudiced by the failure of the trial court to rule on these pretrial motions.

Given the failure of the trial court to rule on the defendant’s motions to

quash as well as his motion to suppress, we find it necessary to remand the matter

to the trial court for an evidentiary hearing on these issues. To that end, we find

the procedure set forth in State v. Clark, 97-1064 (La.App. 3 Cir. 4/1/98), 711

So.2d 738, writ granted and case remanded in light of supplemental filing, 98-

1180 (La. 9/25/98), 726 So.2d 2, and State v. Fuslier, 06-1438 (La.App. 3 Cir.

4/4/07), 954 So.2d 866, to be applicable to this case, and we remand the matter to

the trial court with the specific instructions as set forth in the following

dispositional paragraph.

DISPOSITION

For the foregoing reasons, we remand the case to the trial court with

instructions to the trial court to order the Clerk of Court (as custodian of the

records), the defendant, and/or the state to produce the missing motions to quash

and motion to suppress, or copies thereof at a hearing which the trial court shall

schedule within thirty days of the release of this opinion. If the Clerk of Court, the

defendant and/or the state cannot produce the missing motions or copies thereof,

the trial court shall make a record of such failure to produce them at the evidentiary

hearing and shall give the defendant fifteen days in which to refile the missing

motions. If the motions or copies thereof are produced at the evidentiary hearing,

the trial court shall conduct another evidentiary hearing within thirty days of the

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date they are produced and rule on the motions. If the motions are not produced,

and if the defendant refiles the motions within the fifteen day period provided, the

trial court shall conduct another evidentiary hearing within thirty days after they

are filed and rule on the motions. Finally, and regardless of the trial court’s rulings

on the merits of any of the motions, the trial court shall cause an appellate record to

be made of the results of all of its orders and of all the hearings held pursuant to

this remand; and shall cause the record to be lodged with this court within fifteen

days of the making of the record. The State of Louisiana and the defendant will be

given the opportunity to file supplemental briefs, should either party wish to raise

any additional issues arising from the hearing or hearings. Thereafter, this court

will address any new issues raised by the trial court’s rulings on the missing

motions, and if necessary, will address the defendant’s appeal of his convictions.

REMANDED WITH INSTRUCTIONS.

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