State of Louisiana v. Calvin Louis Noel, III AKA - Calvin Noel

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-617

STATE OF LOUISIANA

VERSUS

CALVIN LOUIS NOEL, III

AKA - CALVIN NOEL

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 133164
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Conery, J., dissents and assigns written reasons.

Keith A. Stutes
Lafayette Parish District Attorney
Cynthia K. Simon
Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT-APPELLANT:
Calvin Louis Noel, III

PICKETT, Judge.
FACTS

On March 22, 2011, the defendant was stopped by a police officer who had

just received a radio dispatch concerning a possible burglary. The officer was

suspicious of the defendant because the defendant was walking in the middle of the

roadway, was wearing a hoodie, and was walking from the direction of the possible

burglary. When the officer attempted to pat down the defendant, the defendant

told the officer that he “had a gun in his hip.” The officer confiscated the gun and

handcuffed and Mirandized the defendant. From his computer database system,

the officer learned that the defendant was a convicted felon. At trial, the state and

the defense stipulated that on October 2, 2008, the defendant was convicted of the

crimes of sexual battery and unauthorized entry of an inhabited dwelling.

According to the officer who testified at trial, there was no evidence linking the

defendant to the possible burglary for which he received a radio dispatch on March

22, 2011.

On May 6, 2011, the defendant, Calvin Louis Noel, III, was charged by bill

of information with one count of possession of a firearm by a convicted felon, a

violation of La.R.S. 14:95.1. The defendant pled not guilty to the charge on May

23, 2011. On March 1, 2012, the defendant filed a Motion to Suppress, which was

denied by the trial court on May 17, 2012. The defendant sought review of the trial

court’s denial of his motion to suppress with this court, and this court denied the

defendant’s writ, finding no error in the trial court’s ruling. State v. Noel, 12-680

(La.App. 3 Cir. 8/17/12) (unpublished opinion), writ denied, 12-2081 (La. 10/4/12),

98 So.3d 847.

2

Subsequently, the defendant filed a Motion and Order for the Appointment

of a Sanity Commission to examine the defendant as to his capacity to proceed to

trial and as to his mental condition at the time of the alleged offense. On January

13, 2013, the trial court ordered the appointment of the sanity commission. 1

Thereafter, on May 23, 2013, the trial court found the defendant capable of

proceeding to trial.

On October 17, 2013, the defendant filed a “Motion to Amend Plea of Not

Guilty to Not Guilty and Not Guilty by Reason of Insanity.” The motion to amend

the defendant’s plea was denied by the trial court on October 28, 2013. On that

same date, the defendant also submitted a motion to quash based on the

unconstitutionality of La.R.S. 14:95.1. Because of the motion to quash, the trial

court granted a continuance of trial.

On September 2, 2014, the defendant proceeded to trial by jury. On that

same date, a unanimous jury found the defendant guilty as charged. Subsequently,

on January 21, 2015, the defendant was sentenced to fifteen years at hard labor,

without benefit of parole, probation, or suspension of sentence, and to pay a fine of

$2,500.00. The defendant filed a Motion for Appeal and Designation of Record,

which was granted on February 12, 2015. The defendant is now before the court

alleging two assignments of error regarding his conviction.

ERRORS PATENT

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

this court for errors patent on the face of the record. After reviewing the record,

we find there is one error patent.

1
The minutes indicate the trial court appointed the sanity commission on January 14,
2013.

3

The trial court failed to properly advise the defendant of the time limitation

for filing an application for post-conviction relief. At sentencing, the court stated,

“[y]ou have two years within which to file for post-conviction relief.” Louisiana

Code of Criminal Procedure Article 930.8 provides the defendant has two years

after the conviction and sentence become final to file an application for post-

conviction relief. The trial court is directed to inform the defendant of the

provisions of La.Code Crim.P. art. 930.8 by sending written notice to the defendant

within ten days of the rendition of its opinion and to file written proof in the record

that the defendant received the notice. See State v. Conway, 12-525 (La.App. 3 Cir.

11/7/12), 101 So.3d 1132.

ASSIGNMENTS OF ERROR

1. The Trial Court erred in denying Defense counsel’s challenge
for cause.

2. The Trial Court erred in not allowing Calvin Noel to change his
plea from not guilty to not guilty and not guilty by reason of insanity.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, the defendant argues that the trial court erred in

denying his challenge for cause of Juror #86, Louise Clavier. The defendant

challenged Ms. Clavier because her son-in-law worked for the sheriff’s office, and

Ms. Clavier felt she would “probably” tend to believe a police officer’s testimony

over another person’s testimony. The defendant alleges that the trial court’s denial

of his challenge for cause forced him to use a peremptory challenge to excuse Ms.

Clavier and to eventually exhaust all of his peremptory challenges. The state, on

the other hand, argues that Ms. Clavier’s responses as a whole showed her

willingness and ability to decide the case impartially.

4

According to La.Code Crim.P. art. 797(2), a defendant may challenge a juror

for cause on the ground that:

The juror is not impartial, whatever the cause of his partiality.
An opinion or impression as to the guilt or innocence of the defendant
shall not of itself be sufficient ground of challenge to a juror, if he
declares, and the court is satisfied, that he can render an impartial
verdict according the law and evidence[.]

In State v. Schmidt, 99-1412, pp. 30-31 (La.App. 3 Cir. 7/26/00), 771 So.2d

131, 148, writ denied, 00-2950 (La. 9/28/01), 798 So.2d 105, cert. denied, 535

U.S. 905, 122 S.Ct. 1205 (2002)(alteration in original), this court stated the

following regarding the purpose of voir dire:

The purpose of voir dire is to test the competency and
impartiality of prospective jurors to determine whether they are fit to
serve on the jury. Voir dire is designed to uncover information about
the prospective jurors, which may be used as a basis for challenges for
cause or exercise of peremptory challenges. State v. Berry, 95-1610
(La.App. 1 Cir. 11/8/96); 684 So.2d 439, writ denied, 97-0278 (La.
10/10/97); 703 So.2d 603. When a defendant exposes the partiality of
a juror, the juror may not be automatically excluded for cause. The
state or the trial court may rehabilitate the juror by asking questions
and obtaining answers demonstrating the juror’s ability to decide the
case impartially pursuant to law and evidence. Ultimately, the trial
court has the power to determine whether or not a juror may be
excused for cause. State v. Turner, 96-845 (La.App. 3 Cir. 3/5/97);
692 So.2d 612, writ denied, 97-2761 (La. 2/20/98); 709 So.2d 773.

To succeed on appeal with the claim that the trial court
erroneously denied the challenge of a prospective juror for cause, a
defendant must exhaust his peremptory challenges and show that the
trial court’s denial of his challenge for cause was an abuse of
discretion. State v. Cross, 93-1189 (La. 6/30/95); 658 So.2d 683;
State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278; appeal
after remand, 97-0177 (La. 3/4/98); 712 So.2d 8, cert. denied, 525
U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998); Turner, 692 So.2d
612. Once these factors have been established, prejudice is presumed
and need not be shown by the defendant. Id.; Cross, 658 So.2d 683.
In Cross, the Louisiana Supreme Court stated that a trial court’s
erroneous ruling on a challenge for cause, depriving the defendant of
one of his peremptory challenges, “constitutes a substantial violation
of [the defendant’s] constitutional and statutory rights, requiring
reversal of the conviction and sentence.”

5

In the present case, the defendant exhausted all of his peremptory challenges.

Thus, if the trial court erroneously denied one of his challenges for cause, prejudice

should be presumed.

In State v. Scott, 04-1312, pp. 16-17 (La. 1/19/06), 921 So.2d 904, 921, cert.

denied, 549 U.S. 858, 127 S.Ct. 137 (2006), overruled on other grounds by State v.

Dunn, 07-878 (La. 1/25/08), 974 So.2d 658, the supreme court discussed the

standard for reviewing the denial of challenges for cause:

A trial court is vested with broad discretion in ruling on
challenges for cause, and its rulings will be reversed only when a
review of the voir dire record as a whole reveals an abuse of
discretion. State v. Cross, 93-1189, p. 7 (La. 6/30/95), 658 So.2d 683,
686; State v. Robertson, 92-2660, p. 4 (La. 1/14/94), 630 So.2d 1278,
1281. . . . “A challenge for cause should be granted, even when a
prospective juror declares his ability to remain impartial, if the juror’s
responses as a whole reveal facts from which bias, prejudice or
inability to render judgment according to law may be reasonably
implied.” State v. Jones, 474 So.2d 919, 926 (La.1985). However, a
trial court does not abuse its discretion when it refuses to excuse a
prospective juror on the ground he is not impartial where, after further
inquiry or instruction, the potential juror has demonstrated a
willingness and ability to decide the case impartially according to the
law and evidence. Robertson, 92-2660 at p. 4, 630 So.2d at 1281.

Accordingly, we will review the challenge for cause denied by the trial court to

determine whether the trial court abused its discretion.

During voir dire in the present case, the trial court asked the jurors if any of

them had any close friends or relatives employed by the sheriff’s department or

other law enforcement agency. Ms. Clavier replied that her son-in-law worked at

the sheriff’s department. When asked if that would present any kind of problem

with her being a fair and impartial juror, Ms. Clavier responded, “Maybe.” The

trial court moved on to other jurors before asking all of the jurors if any of them

had a problem with following the law given to them. The record indicates that all

prospective jurors remained silent. The trial court also instructed the jurors as to

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the defendant’s presumption of innocence and the state’s burden of proving each

element of the offense charged beyond a reasonable doubt. When the trial court

instructed the jurors to raise a hand if unable to accept this law, the record indicates

that all jurors remained silent. All jurors again remained silent when the trial court

asked if any were unable to serve impartially because of a personal, business,

family, or health reason and when asked if there was any reason whatsoever that

they could not decide the case based solely on the evidence presented and in

accordance with the law.

When asked by the state if her relationship with her son-in-law would affect

her ability to be fair and impartial, the following colloquy ensued:

MS. CLAVIER: (NUMBER 86)

Possibly.

MS. SIMON:

Possibly. Oh, yeah, that’s right, you said that. Why do you
think it could affect it?

MS. CLAVIER: (NUMBER 86)

Well, I think it’s a conflict of interest, you know.

MS. SIMON:

You think that you would have more of a tendency to believe a
police officer because your son-in-law is a sheriff’s officer?

MS. CLAVIER: (NUMBER 86)

Probably.

MS. SIMON:

Would you have - - Would you feel an obligation to go back to
him and explain to him what the verdict you reached would have
been?

MS. CLAVIER: (NUMBER 86)

7

Maybe. Maybe I would if I was allowed to.

MS. SIMON:

I mean, he’s not involved in this case. That still would - -

MS. CLAVIER: (NUMBER 86)

I’m just telling you that he’s my son-in-law, and I don’t know.

MS. SIMON:

Okay, thank you.

MS. CLAVIER: (NUMBER 86)

You know, you hear things. I’m just - - I just think it may be a
conflict of interest. I don’t know. I want to be fair to, you know,
whoever’s getting charged.

MS. SIMON:

Okay. And you don’t know if you can do that?

MS. CLAVIER: (NUMBER 86)

I’m not sure.

During defense counsel’s questioning of the jurors, the jurors were asked

individually if they could look at the defendant right then and say he was innocent

of any crime. Ms. Clavier answered, “Yes.” When the trial judge asked if Ms.

Clavier would be accepted as a juror, the state accepted her, but defense counsel

moved to strike her for cause:

MR. BROWN:

Your Honor, I mean, she stated that her son-in-law was a
sergeant in the sheriff’s department and that would cause a problem
for her, that she felt she had a conflict of interest in the case and
would not be able to fairly sit on the case because of that. I mean, she
stated several times she felt that was a conflict of interest for her.

The state responded as follows:

8

MS. SIMON:

She just couldn’t put it into words. I agree, she said conflict of
interest, but when I would try to get her to give me more, she would
say “Possibly, maybe, she didn’t know.”

The trial court denied the challenge for cause, and defense counsel used a

peremptory challenge to strike Ms. Clavier.

In his brief, appellate counsel, citing State v. Kang, 02-2812 (La. 10/21/03),

859 So.2d 649, asserts that the Louisiana Supreme Court has stated the following

regarding a challenge for cause of a juror based on the juror’s relationship with a

police officer:

Generally, an individual who will unquestionably credit the
testimony of law enforcement officers over that of defense witnesses
is not competent to serve as a juror. However, a mere relationship
between a prospective juror and a law enforcement officer is not of
itself grounds to strike the juror for cause. Additionally, a prospective
juror’s seemingly prejudicial response is not grounds for an automatic
challenge for cause, and a trial judge’s refusal to excuse him on the
grounds of impartiality is not an abuse of discretion, if after further
questioning the potential juror demonstrates a willingness and ability
to decide the case impartially according to the law and evidence. But,
a challenge for cause should be granted, even when a prospective
juror declares his ability to remain impartial, if the juror’s responses
as a whole reveal facts from which bias, prejudice or inability to
render a judgement according to law may be reasonably implied.

Id. at 652-53 (citations omitted).

Appellate counsel argues that Ms. Clavier was never rehabilitated and

should have been excused for cause:

In the case sub judice, Ms. Clavier was never rehabilitated, she
admitted she could not be neutral, and Officer Melvin Riddell’s
testimony, the only witness presented by the State, was crucial in
convicting Calvin Noel. A cursory glimpse of the colloquy between
counsel and Ms. Clavier reveals her bias towards law enforcement.
She was not rehabilitated by the State or the court, yet she was not
removed for cause, severely prejudicing Calvin’s case. Calvin Noel’s
conviction rested solely on the testimony of this one police officer.
The denial of the challenge for cause constituted a substantial
violation of Calvin’s constitutional and statutory rights.

9

In its reply brief, the State responds that Ms. Clavier’s responses as a whole

showed her willingness and ability to decide the case impartially. The state further

contends:

The tone of Ms. Clavier’s voice was important when she said she
thought it was a conflict of interest. Her tone indicated these words
were questions more than statements. Because she was unsure if that
relationship itself created a conflict of interest, she wanted us to be
aware of it. She did not provide any further explanation as to why she
thought it was a conflict of interest. The trial judge is the best judge
of the meaning of these words as he heard the tone of her voice. She
said she wanted to be fair, and she answered that she could say
defendant was innocent of the crime before the State of Louisiana met
its burden of proof.

Considering these factors, the state contends that the trial court did not abuse its

discretion when it denied the challenge of Ms. Clavier for cause.

The Louisiana Supreme Court has expressed similar views regarding the fact

that the trial court is in the best position to evaluate a juror’s expressions and

intonations during voir dire. State v. Dorsey, 10-216 (La. 9/7/11), 74 So.3d 603,

cert. denied, ___ U.S. ___, 132 S.Ct. 1859 (2012). The court found that because of

this unique position, the trial court’s decision regarding a juror’s ability to be fair

and impartial should be afforded great deference:

Here, although Jackson’s statements during voir dire appear to raise
questions regarding his ability to be impartial, the district court judge
had the benefit of observing Jackson’s demeanor and hearing his
responses first-hand and was therefore in a better position to
determine whether Jackson would be fair and impartial in this case.

Id. at 625. Although the record in the present case mentions nothing regarding Ms.

Clavier’s facial expressions or tone of voice, we consider the trial court’s ability to

witness such things when we review the trial court’s refusal to excuse Ms. Clavier

for cause.

10

Ms. Clavier never unequivocally stated that she would give more weight to a

police officer’s testimony. Ms. Clavier used the words “possibly,” “probably,” and

“maybe,” when asked if her impartiality would be affected by the fact that her son-

in-law worked with the sheriff’s department. In State v. Raymond, 08-1204, p. 11

(La.App. 5 Cir. 4/28/09), 13 So.3d 577, 585-86, writ denied, 09-1205 (La. 2/5/10),

27 So.3d 296, the fifth circuit found the challenged juror did not unequivocally

state he would give more credibility to a police officer when the juror simply stated

“You would think” to the question of whether he would tend to believe a police

officer over someone else. The fifth circuit also noted that the challenged juror

“silently acquiesced when he did not respond to the court’s inquiry as to whether

there was anyone who could not hold the State to its burden of proof, give

defendant the presumption of innocence, or be fair to both sides.” Id. at 586.

Similarly, in the present case, Ms. Clavier silently acquiesced by not responding

when the trial court asked if any juror had a problem with following the law given

to them; when the trial court asked if any juror was unable to accept the

defendant’s presumption of innocence; when the trial court asked if any juror was

unable to serve impartially because of a personal, business, family, or health

reason; and when the trial court asked if any juror could not decide the case based

solely on the evidence presented and in accordance with the law. Moreover, Ms.

Clavier specifically answered, “Yes,” when defense counsel asked her if she could

look at the defendant right then and say he was innocent of any crime.

The present case is distinguishable from cases which have reversed a

defendant’s conviction based on an improper denial of a challenge for cause. In

State v. Paul, 99-92 (La.App. 5 Cir. 5/19/99), 738 So.2d 1128, four prospective

jurors unequivocally stated that they would believe a police officer’s testimony

11

over a non-police officer’s testimony. Neither the prosecutor nor the judge

attempted to rehabilitate the prospective jurors in Paul, and the jurors never

expressly stated that they could set aside their biases and give the defendant a fair

trial. Id. To the contrary, in the present case, prospective juror Clavier did not

unequivocally state that she would believe a police officer over a non-police

officer. Additionally, although Ms. Clavier was not specifically rehabilitated by the

court on this issue, Ms. Clavier did acquiesce by her silence when asked if she

could apply the law as given. Ms. Clavier also responded, “Yes,” when asked if

she could look at the defendant right then and say he was innocent. Finally, Ms.

Clavier did not respond when the trial court asked if any juror was unable to serve

impartially because of a personal, business, family, or health reason.

The present case is also distinguishable from State v. White, 574 So.2d 561

(La.App. 3 Cir. 1991), where this court reversed because of an erroneous denial of

a challenge for cause. The prospective juror in White knew several Assistant

District Attorneys, the District Attorney, and several friends in law enforcement.

Id. The prospective juror in White answered, “I think it should be[,]” when asked

if a police officer’s testimony should be given more weight because of his

particular job, and answered, “I think so[,]” when asked if a police officer might be

more likely to tell the truth than someone else. Id. at 562. Unlike the present case,

no rehabilitation of the prospective juror in White took place.

Finally, the present case is distinguishable from State v. Hallal, 557 So.2d

1388 (La.1990), a case where the supreme court reversed a conviction based on a

prospective juror’s acquaintance with five police officers the state intended to call

as witnesses at trial. Although the prospective juror acknowledged that the

defendant was presumed innocent and that the state had the burden of proof, the

12

prospective juror indicated that she would tend to believe the state’s police

witnesses because she knew the officers. Id. The supreme court found that the

trial judge should have granted the challenge for cause since the prospective juror

never expressly stated that she could put aside her acquaintanceship with the police

officers. Id. Furthermore, the prospective juror began with the premise that the

police officers directly involved in the arrest and questioning of the defendant were

telling the truth. Id. To the contrary, there is no evidence in the present case that

prospective juror Clavier’s son-in-law was directly involved in the defendant’s

case.

Based on Ms. Clavier’s answers as a whole, the deference that must be given

to the trial court’s denial of the challenge for cause, and the jurisprudence cited

above, we find the trial court did not err in denying the defendant’s challenge of

Ms. Clavier for cause.

Accordingly, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, the defendant alleges that the trial court erred in

denying his “Motion to Amend Plea of Not Guilty to Not Guilty and Not Guilty By

Reason of Insanity.” At a hearing on the motion, the trial court denied the motion

based on its untimeliness and based on the fact that the defendant’s insanity at the

time of the offense was addressed by the doctors appointed to his sanity

commission.

Statutory and Jurisprudential Law

Louisiana Code of Criminal Procedure Article 561 states the following about

a defendant’s right to amend his plea:

13

The defendant may withdraw a plea of “not guilty” and enter a
plea of “not guilty and not guilty by reason of insanity,” within ten
days after arraignment. Thereafter, the court may, for good cause
shown, allow such a change of plea at any time before the
commencement of the trial.

The motion to amend plea was filed over two years after arraignment. Thus, the

trial court could allow the amendment only if good cause was shown.

In State v. Miller, 05-1826, p. 21 (La. 6/29/07), 964 So.2d 911, 923, the

supreme court explained that “good cause” is “shown when the defendant produces

an indicia of insanity and shows the plea is not changed as a dilatory tactic to

achieve a strategic advantage.” The court in Miller found the trial court erred in

denying Miller’s motion to change his plea and reversed Miller’s conviction and

sentence. Miller produced evidence of “almost lifelong mental problems for which

defendant received intermittent treatment from the age of nine.” Id. at 925. The

court also noted “the absence of any suggestion that the motion to change plea had

been filed for dilatory purposes[.]” Id. Miller filed his initial motion to amend his

plea approximately three months after his arraignment and ten months before trial

and filed his second motion to change his plea one month before trial. Id.

Indicia of Insanity

In the present case, the Defendant did produce “an indicia of insanity” by

way of the sanity commission reports. A sanity commission was ordered to

examine the defendant’s capacity to proceed to trial and the defendant’s sanity at

the time of the offense. At the hearing on the motion to amend plea, defense

counsel argued as follows:

Your Honor, in this case a sanity commission has examined Mr.
Noel. While both doctors found him competent, both noted he has a
long history of mental illness. Both diagnosed him with suffering
from chronic paranoid schizophrenia and noted he has been prescribed
and occasionally takes Seroquel, an antipsychotic drug. Further

14

records provided by the defense to both doctors in the sanity
commission - - I have another copy if the Court wishes to examine
them - - show that he has been treated both at University Medical
Center and Tyler Mental Health Center since 2006 for mental illness.

Dr. David Dawes, one of the sanity commission doctors, summarized the

following “Psychiatric History” for the defendant:

He has been treated at UMC and Tyler Mental Health Center.
He has been hospitalized on at least a few occasions. Diagnosis in the
past has been paranoid schizophrenia. Apparently he only takes
Seroquel in a low dose on an as needed basis only. He mentions that
he has problems controlling his anger explaining this saying “I was in
the penitentiary”.

In the “Social History” section of his report, Dr. Dawes noted that the defendant is

on Social Security Disability for schizophrenia. The defendant’s sister reported

that the defendant had been “in and out of mental illness.” Despite the notations of

mental illness, Dr. Dawes found the defendant capable of standing trial and found

no reason to believe that his mental illness caused him to commit the crime for

which he was charged. Dr. Dawes did opine, however, that the defendant needed

to be on routine antipsychotic medications, for which he should immediately return

to Tyler Mental Health Center for appropriate treatment.

Dr. Glenn Ally, the other doctor appointed to the sanity commission,

likewise noted the defendant’s extensive psychiatric history:

He has been hospitalized for psychiatric reasons on a number of
occasions. Records suggest he has been a patient at Dr. Joseph Henry
Tyler Mental Health Center for many years, dating back to 2006. He
has been hospitalized on several occasions by “Order of Protective
Custody (OPC).[”] Most of these occasions were initiated as a result
of violent behavior when he was staying with his sister. He has been
tried on several medications, but compliance seems to have been an
on-going problem. His diagnosis at Tyler Mental Health Center has
been Schizophrenia, Paranoid Type. Although he notes that he has
been seen “recently” at Tyler Mental Health Center, he cannot tell me
when that most recent appointment was.

15

Dr. Ally further noted that the defendant reported “auditory hallucinations,” telling

the doctor that he “hears voices that tell him to do bad stuff.” Concluding his

report, Dr. Ally opined that the defendant was presently competent to stand trial.

Dr. Ally further concluded that his diagnostic impression was “Schizophrenia,

paranoid type,” but did not feel that the schizophrenia precluded the defendant

from participating in trial nor precluded the defendant from knowing right from

wrong at the time of the offense.

At the hearing on the motion to amend plea and in its brief on appeal, the

state emphasizes that both doctors opined that the defendant’s mental illness did

not cause him to commit the offense for which he is charged. In its ruling, the trial

court also stated that both doctors addressed the issue of insanity at the time of the

offense in their reports. In Miller, 964 So.2d at 923, however, the supreme court

found that although relevant, proof of insanity “at the time of the offense” is not

the sole determinative factor in determining whether a defendant can change his

plea. The supreme court in Miller first noted that in State v. Taylor, 254 La. 1051,

229 So.2d 95 (1970), it had reversed Taylor’s conviction, finding the trial court

erred in denying a motion to change plea filed on the day of trial. As noted by

Miller, the court in Taylor found good cause existed based on the opinion of a

coroner that Taylor was schizophrenic. Miller, 964 So.2d at 922, specifically

noted that the court in Taylor did not require Taylor “to make a threshold

demonstration that [his] . . . mental illness manifested itself at the time of the

offense” in order to change his plea. The court in Miller further stated:

In concluding that the defendant need only produce an indicia
of insanity, or some evidentiary basis for the plea, to satisfy the good
cause requirement, we note Article 561 does not specify a burden of
proof. This fact is contrasted with LSA-C.Cr.P. art. 652, which, at
trial, imposes on the defendant “the burden of establishing the defense

16

of insanity at the time of the offense by a preponderance of the
evidence.” Given this statutory scheme, it would be incongruent to
require the defendant to prove his insanity by a preponderance of
evidence in order to merely change his plea.

Although an indicia of insanity at the time of the offense may
be a relevant consideration, such cannot be the sole determinative
factor in deciding whether a defendant may change his plea pursuant
to Article 561. The language of Article 561 does not obligate the
defendant to prove his insanity at the time of the offense to change his
plea. Further the defense of insanity at the time of the offense is
ultimately an affirmative defense which must be decided by the
factfinder at trial. LSA-C.Cr.P. art. 652.

Id. at 922-23.

“Conversely,” the supreme court noted, “a defendant who is possessed of no

evidence whatsoever of mental illness would not be able to show good cause as

required by Article 561.” Id. at 923. As examples of cases wherein the defendant

failed to produce evidence of mental illness, the supreme court cited the following:

See State v. Sampson, 480 So.2d 952, 954 (La.App. 2 Cir. 1985) (The
“indicia” of an evidentiary basis for the change of plea, or “good
cause,” is not shown simply by the testimony of an assistant jailer that
defendant was verbally abusive toward another jail inmate.); State v.
Baldwin, 388 So.2d 664, 670 (La.1980), cert. denied, 449 U.S. 1103,
101 S.Ct. 901, 66 L.Ed.2d 830 (1981) (Good cause is not shown
simply by a defendant’s testimony that he was a “heavy drinker.”);
State v. Hurst, 99-2868 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 81,
writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962 (On motion to
reconsider sentence, defense counsel conceded the motion for change
of plea was a strategy to get evidence of the defendant’s diminished
capacity before the jury.).

Id.

Considering the defendant’s present diagnosis of paranoid schizophrenia and

hospitalization for that illness, an “indicia of insanity” was shown in the present

case. However, as noted by the court in Miller, the defendant must also show that

his request to amend his plea is not a dilatory tactic to achieve a strategic

advantage.

17

Dilatory Tactic

In addition to denying the defendant’s motion to amend his plea because of

the doctors’ reports, the trial court also denied the motion because of the

untimeliness of the motion. As stated previously, the motion to amend plea must

be filed within ten days of arraignment. La.Code Crim.P. art. 561. Thereafter, the

plea may be amended only if the trial court finds good cause for the amendment.

In this case, the motion to amend plea was filed over two years after arraignment.

Thus, on its face, the request to amend plea was untimely. In attempting to find

out why the motion was filed untimely, the trial court initiated the following

colloquy with defense counsel:

THE COURT: Now, your discovery of the extent of his
mental illness and his medication history was only completed when
you got these reports; is that right?

MR. BROWN: Yes, Your Honor. But it’s been ongoing
with Mr. Noel, his mental illness. We had him examined by a doctor
just last week. It’s been fluctuating during my representation of him.

THE COURT: Because the timing of the motion is why I’m
asking that question of why the motion was filed late, the motion to
change his plea. The extent of the mental illness was not known by
you until - -

MR. BROWN: The extent was known, Your Honor, however,
in my discussions with Mr. Noel it appears to have worsened again.

The state then voiced its objection based on the timeliness of the motion:

MR. SIMON: Your Honor, the State would object based on
timeliness of this motion to change his plea from not guilty to not
guilty by reason of insanity. And just for the record, Your Honor, this
case has been pending since May 6th of 2011, and the defendant was
arraigned on May 23th of 2011.

....

Your Honor, also, the State would argue that the sanity
commission was empanelled and the Court found the defendant
competent to proceed back on May of - - 23rd of 2013, and we’ve

18

since had another trial date set since the May 23rd hearing back in
July. And the State argues that if there was going to be a change in
the plea to not guilty to not guilty by reason of insanity, it should have
been done way before October 17th of this year. And the State only
got notice of it on October 22nd, which was at the end of the week last
week. And so we would object that, both, it is delayed and that good
cause has not been shown in this case.

In its brief to this court, appellate counsel contends that the motion to amend

the defendant’s plea was clearly not a delay tactic since it was filed almost one

year before trial. It appears, however, that the defendant’s case was scheduled for

trial on the day the motion was heard – October 28, 2013. According to the

minutes, the defendant’s trial was set for “trial docket” on July 29, 2013.

Pursuant to a motion filed by the defendant on July 29, 2013, the matter was

continued “to the docket of October 28, 2013.” At the beginning of the October

28, 2013 hearing, the state noted that the defendant’s case was on page three of the

docket that day. The state also noted that “[w]e have a trial set,” but there were

some preliminary defense motions to take up first. The first motion was the

motion to amend plea, which the trial court denied. The second motion was a

motion to quash based on the unconstitutionality of La.R.S. 14:95.1. Although

defense counsel stated that he was prepared to argue the motion to quash, he asked

the trial court to grant a continuance until the supreme court decided a case

pending before it with the very same issue. The state objected to the continuance

but acknowledged that judicial efficiency would best be served by waiting for the

supreme court to issue its opinion. Thus, the trial court granted the defendant’s

request for a continuance but warned that it would be the last one. Consequently,

even though the defendant’s trial was not held until almost a year after the motion

to amend plea, the motion to amend plea was actually filed a few days prior to the

October 28, 2013 trial date and actually heard on the October 28, 2013 trial date.

19

The sanity commission reports were filed several months earlier on May 23,

2013, the day on which the trial court found the defendant competent to proceed.

Thus, defense counsel was aware of the defendant’s mental illness diagnosis at that

time and could have filed a motion to amend plea shortly thereafter. When

questioned as to why he did not file the motion to amend plea when the mental

illness and medication history was discovered via the reports, defense counsel

explained that the defendant’s illness had worsened. This explanation still does not

excuse the failure to file the motion to amend the plea shortly after the reports were

rendered. The defendant’s mental illness was evident from the reports, which were

submitted at least five months before the defendant’s request to amend his plea.

In Miller, the supreme court cited two cases in which it reversed convictions

based on the trial court’s wrongful denial of the defendants’ motions to change

their pleas. The two cases are Taylor, 229 So.2d 95, and State v. Delpit, 341

So.2d 876 (La.1977). Notably, in both Taylor and Delpit, the motions to amend

plea were filed on the day of trial. Id. The supreme court in Miller, 964 So.2d at

922, fn. 21, acknowledged this fact but stated the following:

In citing Taylor and Delpit, we in no way sanction or endorse
filing a change of plea on the day of trial. Currently, with advances in
mental health evaluation and testing, substantially more evidence is
generally available on mental health issues than indicated in Taylor
and Delpit. The closer in time to trial the change in plea is filed, the
greater the risk good cause will not be shown.

In Taylor, the supreme court found that the trial court erred in denying

Taylor’s request to amend his plea on the day of trial. At a hearing to determine

whether a sanity commission should be appointed, the coroner testified that Taylor

impressed him as being psychotic and schizophrenic. The sheriff also testified that

he heard Taylor mumbling and apparently talking to God in his cell. The trial

20

judge appointed a sanity commission, as a result of which three psychiatrists

reported that Taylor was capable of proceeding to trial. The reports were

homologated on June 17, 1968, and Taylor was found competent to proceed. Trial

was set to proceed eight days later on June 25, 1968. On the day of trial, defense

counsel requested that Taylor be allowed to change his plea to not guilty and not

guilty by reason of insanity. The trial court denied Taylor’s request. Finding the

trial court erred, the supreme court stated the following:

We think the judge was in error and clearly abused his
discretion under the facts and circumstances here presented. In the
first place, the testimony given by the coroner (although not a
psychiatrist, he was shown to have some psychiatric training), that this
appellant was schizophrenic, a well-known form of insanity (see
Webster’s New International Dictionary, 2nd Ed., page 2235), was
sufficient in itself to justify the granting of the motion for a change of
plea. And when it is considered that the medical opinion of the
coroner is supported by the factual testimony of the sheriff, which was
taken on the motion for the appointment of a sanity commission, and
that defense counsel also offered to produce the evidence of an
inmate, who had been confined in jail with appellant, to the same
effect, we wonder how much more and what additional type of
evidence would have been required by the judge to establish good
cause for the changing of a plea.

But, beyond this, we believe the judge should have given
serious consideration to two other factors involved. Initially, appellant
was on trial for his life and, this alone, in the absence of a showing by
the State that the plea was being filed solely for delay, might have
been sufficient to warrant relaxation of strict adherence to the
procedural rule provided by Article 561 which, according to the
official comment of the redactors, was enacted to obviate the practice
of dilatory tactics by defendants in criminal cases.

Moreover, in enforcing rigidly the procedural requirements of
Article 561 C.Cr.P., the judge apparently lost sight of the fact that the
report of the sanity commission simply determined the issue of
appellant’s present sanity and that no medical opinion whatever had
been voiced (other than that of the coroner) concerning appellant’s
sanity at the time he committed the offense. . . .

We also find that the judge apparently failed to give
consideration to the fact that, following arraignment, defense counsel
timely applied for and the judge ordered the appointment of a sanity

21

commission, which commission reported to the judge by letter dated
June 3, 1968, and this report was not homologated until June 17,
1968. During this time the issue of appellant’s present insanity was
still pending, that is, from May 3 to June 17, 1968, and it is fair to say
that defense counsel were not remiss in failing to move for a change
of appellant’s plea until the sanity report had been approved.
Following the homologation of the report on June 17, only seven days
elapsed before the date of appellant’s trial. Under these circumstances,
particularly in the absence of any contention by the State that the
request for a change of plea was merely a delaying tactic, the judge’s
ruling appears unreasonable.

Id. at 97-98 (footnote omitted).

Similarly, in Delpit, 341 So.2d 876, the supreme court reversed Delpit’s

armed robbery conviction because the trial judge denied Delpit’s request to change

his plea on the day of trial. The evidence of insanity in Delpit consisted of

documents showing Delpit was functioning at the lower end of a borderline mental

retardation range. One document indicated that Delpit’s low mental ability limited

his ability to determine “right from wrong” in certain situations. The evidence also

consisted of an affidavit from Delpit’s mother indicating Delpit had been a

problem since he was a small child, indicating he did not seem to understand right

from wrong and indicating that he attended a psychiatric clinic as a small child.

Delpit’s defense counsel also noted that Delpit was under psychiatric treatment and

was awaiting a report from the psychiatrist. The supreme court found this

evidence was a sufficient showing of “good cause” to support a change of plea. Id.

at 879. The supreme court particularly noted that there was no indication that

Delpit sought to change his plea as a dilatory tactic. Additionally, the supreme

court noted that the trial court at first seemed prepared to grant Delpit additional

time to establish good cause, but for reasons unrelated to Delpit’s request, later

refused to allow Delpit to change his plea and ordered trial to proceed

immediately.

22

Considering the supreme court’s admonition in Miller that its citation of

Taylor and Delpit in no way sanctioned the filing of a motion to amend plea the

day of trial and considering the extenuating circumstances in both Taylor and

Delpit, we find the cases are distinguishable from the present case. In Taylor, the

homologation of the sanity commission reports occurred only days before the trial.

In Delpit, a psychiatric report was pending when Delpit requested to amend his

plea. On the other hand, the psychiatric reports relied upon by the defendant in the

present case were submitted over five months before trial, and the only excuse

given by defense counsel for failing to file the request to change the plea sooner

was that the defendant’s mental condition had worsened.

Unlike Taylor and Delpit, in State v. Lee, 10-418 (La.App. 1 Cir. 9/10/10)

(unpublished opinion)2, the first circuit found no error in the trial court’s denial of a

motion to change plea heard three days before trial was scheduled to commence.

As in the present case, a sanity commission was appointed to examine Lee. Seven

months after the reports were submitted, Lee requested to change his plea. Lee

attempted to show good cause for the delay by citing to one of the sanity

commission reports wherein Dr. Mancuso opined that Lee exhibited criteria for

“‘psychotic disorder not otherwise specified.’” Id. at 4. The trial court denied the

request, noting the untimeliness of the motion and noting that Dr. Mancuso

determined to a reasonable degree of medical certainty that Lee’s mental disease or

defect did not prevent Lee from knowing right from wrong at the time of the

offense. The first circuit upheld the trial court’s denial, finding as follows:

The defendant’s burden of showing good cause for a change of
plea logically increases each day that his trial date nears. The
defendant waited over three years, until the first workday before trial,

2
This case is cited at 2010 WL 3527315.

23

to file a motion to change his pleas. He presented no evidence that he
did not understand the difference between right and wrong at the time
he committed the offense. Moreover, an expert who evaluated the
defendant found that whatever disease or mental defect he may have
had did not prevent him from being able to distinguish right from
wrong at the time of the offense. Accordingly, the trial court did not
abuse its discretion in refusing to allow the defendant to change his
pleas.

Id. at 5 (citations omitted) (footnote omitted).

Similarly, although the sanity commission doctors acknowledged the present

the defendant’s diagnosis of paranoid schizophrenia, both stated that this mental

illness did not cause the commission of the present offense. In State v. Mercer,

564 So.2d 783 (La.App. 2 Cir. 1990), the second circuit found the trial court erred

in denying Mercer’s request to change his plea forty days prior to trial. There was

evidence in Mercer that the supervisor of nurses for the Sheriff’s Department

regularly administered Mercer prescription drugs, including “‘Lithium, a known

anti-depressant frequently used to treat manic-depressive behavior, and Prolixin.’”

Id. at 786. There was also evidence from Mercer’s family that Mercer had a

history of commitments to Central State Hospital and that Mercer suffered from

some type of “‘grandiose delusion.’” Id. One of the hospital discharge summaries

indicated Mercer had an “‘anti-social personality.’” Id. Despite the absence of

psychiatric testimony, the second circuit found Mercer showed good cause to

warrant a change of plea. Mercer is distinguishable from the present case,

however, since the defendant in the present case filed his motion to change plea

only a few days before trial.

Considering the heightened burden that exists the closer to trial a request to

amend a plea is made, we find the trial court did not err in denying the defendant’s

motion to change his plea only a few days prior to trial. As considered by both Lee

24

and Jason, both of the psychiatrists in the present case opined that the defendant’s

mental illness did not cause him to commit the offense for which he is charged.

Although this ultimate issue may have been appropriately left for the fact finder if

the request to amend plea had been filed shortly after the sanity commission

reports were submitted, the defendant’s delay in filing this motion increased his

burden of proving good cause. Thus, we find the trial court did not err in finding

no good cause and denying the defendant’s request to amend his plea.

CONCLUSION

The defendant’s conviction and sentence are affirmed. The trial court is

directed to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by

sending written notice to the defendant within ten days of the rendition of the

opinion. The trial court is instructed to file written proof in the record that the

defendant received the notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

25

NUMBER 15-617 KA

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

V.

CALVIN LOUIS NOEL, III AKA CALVIN NOEL

CONERY, J., dissents and assigns reasons.

I respectfully dissent on the issue of the defendant’s Motion to Amend Plea

of Not Guilty to Not Guilty and Not Guilty by Reason of Insanity (Motion to

Amend). I would reverse the conviction and sentence, order the trial court to allow

the defendant to amend his plea, and remand for a new trial.

The record shows that the defendant does have serious psychiatric problems,

including a diagnosis of paranoid schizophrenia with hospitalizations, prescribed

medication and continued treatment for that mental illness. The trial court had

ordered a sanity commission empaneled for the purpose of determining capacity to

stand trial. The experts appointed to the sanity commission filed their reports,

which were admitted into evidence at the hearing on the Motion to Amend. Both

doctors concluded that in spite of defendant’s serious mental health problems, he

was competent to stand trial. A few months later, counsel for defendant filed the

Motion to Amend and at the hearing on the Motion, defense counsel pointed out

that the sanity commission had been empaneled for the purpose of determining

capacity to proceed to trial and not the issue of insanity at the time of the

commission of the crime. While the issue of competency at the time of

Page 1 of 5

commission of the crime was mentioned in the report of the sanity commission,

counsel had no opportunity to cross examine the doctors or call witnesses on this

important issue. In effect, denying the Motion to Amend would prevent counsel

from presenting the only remaining defense available to the defendant, not guilty

by reason of insanity.

Louisiana Code of Criminal Procedure Article 561 states that the defendant

has an absolute right to change his plea to Not Guilty and Not Guilty by Reason of

Insanity within ten days of arraignment. The article goes on to state, “Thereafter,

the court may, for good cause shown, allow such a change of plea at any time

before the commencement of trial.” In this case, more than one year had elapsed

from the date of arraignment when the Motion to Amend was filed. At the hearing,

the trial judge denied the Motion to Amend solely on the ground of “timeliness,”

and did not specifically rule on whether the defendant had shown “good cause” to

amend the plea.

The majority correctly notes that the hearing on the Motion to Amend was

filed only a few days before the then scheduled trial date and several months after

defendant received the sanity commission report. The majority also noted that in

denying the Motion to Amend, the trial judge did refer to the reports of the experts,

both of whom expressed an opinion that the defendant did know “right from

wrong” at the time of the commission of the offense.

However, it is clear from the record that counsel did not file the Motion to

Amend as a “delay tactic” or to achieve a “tactical advantage.” I respectfully

disagree with the majority’s conclusion that, “Although this ultimate issue may

have been appropriately left for the factfinder if the request to amend plea had been

filed shortly after the sanity commission reports were submitted, the defendant’s

Page 2 of 5

delay in filing this motion increased his burden of proving good cause.”

(Emphasis added.)

Louisiana Code of Criminal Procedure Article 561 does not provide for a

“heightened burden” when the Motion to Amend is filed shortly before trial. To

the contrary, La.Code Crim.P. art. 561 provides, in pertinent part, “the court may,

for good cause shown, allow such a plea at any time before commencement of

trial.” (Emphasis added.)

In State v. Taylor, 254 La. 1051, 229 So.2d 95 (1970), and State v. Delpit,

341 So.2d 876 (La.1977), the supreme court reversed convictions based on the trial

court’s wrongful denial of the defendant’s Motion to Amend Plea filed on the day

of trial. See also State v. Mercer, 564 So.2d 783 (La.App. 2 Cir. 1990).

It is significant to note that even though the defendant’s Motion to Amend

was filed shortly before his then scheduled trial date, there was a pending defense

Motion to Quash scheduled for hearing that same day alleging that the felon in

possession statute, La.R.S. 14:95.1, was unconstitutional. The trial judge, the

State, and defense counsel knew that the case of State v. Draughter, 13-914 (La.

12/10/13), 130 So.3d 855, which would decide the constitutional issue, was

pending before the Louisiana Supreme Court. The trial judge granted a

continuance of the trial, with no strong objection from the State, on the very

grounds that Draughter was pending before the supreme court, and it would be

prudent to wait for a supreme court ruling on the constitutionality of the felon in

possession statute before trying this defendant on that charge. In fact, this case

was not rescheduled for trial for almost one year following the hearing on the

Motion to Amend. Therefore, it cannot seriously be argued that the defendant filed

the Motion to Amend as a dilatory tactic or in order to obtain a tactical advantage.

Page 3 of 5

The “timeliness” of the motion should not have been a deciding factor, as this case

was not going to trial until after Draughter was decided.

Again, the trial judge denied the Motion to Amend strictly on the

“timeliness” issue and his reasons for ruling did not discuss “good cause.”

Louisiana Constitution Article 1, Section 16, is pertinent to a decision in this

case and states, in pertinent part, “An accused is entitled to confront and cross

examine the witnesses against him, to compel the attendance of witnesses, to

present a defense, and to testify in his own behalf.” The trial court’s ruling, in

effect, denied the defendant his constitutional right to cross examine the medical

experts on the issue of his sanity at the time of the commission of the offense, to

call witnesses on his own behalf, and, perhaps, to testify on that issue, and hence

deprived the defendant of his only realistic available defense, Not Guilty by

Reason of Insanity.1 I would find that, based on all the circumstances of this case,

the trial court abused its discretion by denying the defendant an opportunity to

amend his plea and put on a defense.

CONCLUSION

This mentally ill defendant was walking on a public street with a “hoodie”

when stopped by the police. He was a convicted felon and did have a gun on his

person, which he promptly admitted to the officer on initial questioning. However,

the record confirms that defendant has severe mental health issues. He should be

allowed to amend his plea so as to put the issue of sanity at the time of the

commission of the offense before the jury and exercise his constitutional right to

present a defense.

1
The defendant had previously filed a Motion to Suppress the Evidence on the grounds that the stop and
initial questioning by the police was unconstitutional. The trial court denied the Motion, and a panel of this court, as
well as the Louisiana Supreme Court, denied writs on that issue, as noted by the majority.

Page 4 of 5

I would reverse the conviction and sentence, order the trial judge to allow

the defendant to change his plea to Not Guilty and Not Guilty by Reason of

Insanity, and remand for a new trial. In light of my position on reversal on this

issue, a discussion of the remaining assignment of error is pretermitted.

Page 5 of 5