KA-0018-0142 Nonprecedential Affirmed Processed

State of Louisiana v. Bishop Slade Dubroc

Louisiana Court of Appeal, Third Circuit · Filed November 21, 2018

Authorities cited

Identified automatically; this list may not be exhaustive.

State v. Means 32 So. 3d 805
State v. Bazile 144 So. 3d 719
State v. T.T. 111 So. 3d 71
State v. McKeel 153 So. 3d 1029
State v. Alexander 219 So. 3d 340
State v. Boudreaux 182 So. 3d 940
State v. Herrod 412 So. 2d 564
State v. Chinn 92 So. 3d 324
State v. Blanchard 74 So. 3d 711
State v. Bell 140 So. 3d 830
Cc Towing & Rec. Inc. v. State Dept. of Public Safety & Corr. 842 So. 2d 321
State v. Phillips 365 So. 2d 1304
State v. Spurlock 539 So. 2d 977
State v. Spurlock 175 So. 3d 955
State v. Lynn 251 So. 3d 1262
State v. Robinson 63 So. 3d 1113
State v. Robinson 76 So. 3d 1148
State v. Ray 547 So. 2d 1350
State v. Ray 553 So. 2d 470
State v. Harris 654 So. 2d 680
State v. Martin 427 So. 2d 1182
State v. Firmin 522 So. 2d 1181
State ex rel. Giordano v. Butler 532 So. 2d 759
State v. Fletcher 776 So. 2d 1240
State v. Motton 803 So. 2d 986
State v. Johnson 432 So. 2d 815
Beyer v. Daul Insurance Agency, Inc. 438 So. 2d 1113
State v. Johnson 457 So. 2d 1251
State v. Johnson 471 So. 2d 1041
State v. Payne 677 So. 2d 527
State ex rel. Bias v. State 157 So. 3d 1123
State v. Cook 82 So. 3d 1239
In Re Martin 82 So. 3d 1232
State v. Jones 332 So. 2d 461
State v. Cousin 240 So. 3d 954
State v. Boutte 27 So. 3d 1111
State v. McCarroll 337 So. 2d 475
2 So. 3d 719 not in our corpus
State v. Johnson 389 So. 2d 1302
State v. Blue 34 So. 3d 447
State v. Charles 178 So. 3d 1157

Opinion text

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-142

STATE OF LOUISIANA

VERSUS

BISHOP SLADE DUBROC

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 26837-13
HONORABLE RONALD F. WARE, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Pickett, J., dissents and assigns written reasons.

p. 2

John Foster DeRosier
District Attorney
Fourteenth Judicial District
Carla S. Sigler
Karen C. McLellan
Elizabeth B. Hollins
Assistant District Attorneys
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR STATE/APPELLEE:
State of Louisiana

Brent Hawkins
Derrick Kee
Hawkins Kee Law Group
1417 Hodges Street
Lake Charles, LA 70601
(337) 210-8811
COUNSEL FOR DEFENDANT/APPELLANT:
Bishop Slade Dubroc

p. 3

SAUNDERS, Judge.

On December 19, 2013, Defendant, Bishop Slade Dubroc, and a co-defendant

were charged by grand jury indictment with two counts of attempted second degree

murder, violations of La.R.S. 14:27 and 14:30.1. The indictment was amended on

April 14, 2015, to charge Defendant with a third count of possession of a firearm by

a convicted felon, a violation of La.R.S. 14:95.1; and a fourth count of distribution

of marijuana, a violation of La.R.S. 40:966(A)(1). On that same date, Defendant

waived his right to a jury trial. On June 3, 2015, after a two-day bench trial, the trial

judge found Defendant guilty of all counts.

Subsequently, on July 10, 2015, Defendant was charged as a second habitual

offender in a separate docket number. 1 On August 24, 2015, the trial court accepted

Defendant’s admission to his status as a second habitual offender on his two

convictions for attempted second degree murder and his one conviction for

distribution of marijuana. The trial court sentenced Defendant as follows:

Attempted second degree murder – second habitual offender (two
counts) – thirty-five years in DOC on each count.

Distribution of marijuana – second habitual offender – fifteen years in
DOC.

Possession of a weapon by a convicted felon – ten years in DOC.

The trial court ordered all sentences to run concurrently. The trial court also found

Defendant violated his probation in a separate docket number and ordered that

sentence to run consecutively to the sentences above. 2 On August 31, 2015,

Defendant filed a pro se Motion to Reconsider Sentence in the docket number for

1
The same brief was filed in both the present appeal (17-142) and the habitual offender
appeal (17-143).
2
The State nolle prossed a charge of introduction of contraband into jail and a charge of
possession of a schedule I controlled dangerous substance in a separate docket number.

p. 4

the underlying convictions. Defendant filed another pro se Motion to Reconsider

Sentence on September 22, 2015. Without specifying which of the two motions to

reconsider sentence it was denying, the trial court denied the motion by written order

on January 5, 2016.

Thereafter, a Motion and Order for Out of Time Appeal was filed on

November 17, 2016. The trial court granted the out-of-time appeal that same date.3

Now before the court is a brief filed by Defendant alleging four assignments of error,

two of which involve Defendant’s waiver of his right to jury trial and the other two

involve Defendant’s adjudication as a second habitual offender.

FACTS:

The following Statement of Facts is set forth in Defendant’s brief:

At Mr. Dubroc’s bench trial, the judge concluded that on
November 3, 2013, Mr. Dubroc traveled in a vehicle to St. Charles
apartments located at 1011 18th Street Lake Charles, Louisiana to sell
marijuana. It was at this location Mr. Dubroc was alleged to have
committed the subject offenses, purportedly discharging a weapon
striking two persons. It is from this verdict of guilt, and subsequent
sentencing, that Mr. Dubroc appeals.

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

recognize one error patent. However, it involves Defendant’s waiver of his right to

jury trial. Since the validity of Defendant’s jury-trial waiver has been assigned as

error, we will discuss the waiver as an assigned error rather than an error patent.

ASSIGNMENT OF ERROR NUMBER ONE:

3
The motion for out-of-time appeal includes the docket number for the underlying appeal
only. Pursuant to State v. Means, 09-1716 (La. 4/9/10), 32 So.3d 805, however, the habitual
offender conviction is also before this court.

2

p. 5

Defendant asserts the trial court violated his right to a jury trial by failing to

require a written motion forty-five days prior to trial pursuant to La.Const. art. I, §

17 and La.Code Crim.P. art. 780.4 For the reasons that will be discussed, we find

that this assignment lacks merit.

Defendant was entitled to a jury trial in this case. See La.R.S. 14:30.1 and

La.Code Crim.P. art. 782. Both the Louisiana Constitution and the Code of Criminal

Procedure provide for the waiver of this right in certain circumstances. La.Const.

Art. I, § 17 and La.Code Crim. P. art. 780. In 2010, the Louisiana Constitution was

amended to require the waiver be made no later than forty-five days prior to the trial

date:

Except in capital cases, a defendant may knowingly and intelligently
waive his right to a trial by jury but no later than forty-five days prior
to the trial date and the waiver shall be irrevocable.

La.Const. art. I, § 17(A) (in pertinent part).

In State v. Bazile, 12-2243, p. 20 (La. 5/7/13), 144 So.3d 719, 735, the

supreme court interpreted “trial date” in La.Const. art. I, § 17 to mean the initial trial

setting. In the present case, the initial trial setting was June 9, 2014. The trial date

was refixed several times. On April 14, 2015, the State amended the grand jury

indictment to charge two additional crimes, and Defendant entered a plea of not

guilty to the new charges. Defendant also waived his right to a jury trial at the April

14, 2015 hearing. Since Defendant’s waiver of his right to jury trial was entered

after the initial trial fixing, Defendant’s waiver was not timely under the provisions

of La.Const. art. 1, § 17. However, in light of the cases discussed below, the

4
The State argues this issue should not be considered as it was waived by Defendant’s lack
of objection. As will be discussed, Defendant’s lack of objection is relevant to the merits of this
assignment. However, since this error is an error patent, consideration of the issue is appropriate
even without a contemporaneous objection. See State v. T.T., 12-146 (La.App. 1 Cir. 9/21/12),
111 So.3d 71.
3

p. 6

violation of La.Const. art. I, § 17 is harmless and waived by Defendant’s failure to

object.

In State v. McKeel, 13-855 (La.App. 3 Cir. 2/12/14), 153 So.3d 1029, this

court found the error in allowing the defendant to waive his jury trial in violation of

the time period set forth in La.Const. art. I, § 17 was harmless where the defendant

requested a waiver of his right to jury trial and did not object to the granting of the

waiver. This court additionally noted the defendant did not assign as error or argue

the jury waiver issue on appeal.5 Like in McKeel, the present Defendant did not

object when the trial court granted his untimely waiver. The present Defendant does,

however, assign the untimely waiver as an assignment of error on appeal. Despite

the fact that Defendant has assigned the untimeliness as an error on appeal, the

jurisprudence discussed below supports a finding that the error is harmless and

waived by Defendant’s lack of objection in the trial court.

In State v. McKnight, 16-310, p. 14 (La.App. 1 Cir. 9/16/16) (unpublished

opinion), writ denied, 16-1769 (La. 6/16/17), 219 So.3d 340, the first circuit stated

the following regarding a defendant’s relinquishment of his right to challenge his

untimely jury trial waiver:

As noted by the trial court, pursuant to both La. Const. art. I, §
17A and La. C.Cr.P. art. 780D, the waiver of a trial by jury is
irrevocable and cannot be withdrawn by the defendant. Even if the
defendant’s exercise of this right might have been untimely under
Article I, Section 17A and Article 780D (the defendant’s waiver was
not made more than forty-five days before the trial date), any such error
is not structural in nature and was waived when the defendant elected
to be tried before the trial judge in a bench trial. Once the trial court
accepted the defendant’s untimely waiver with no objection by the
State, that waiver became irrevocable by operation of the amendments
to Article I, Section 17A and Article 780. To allow the defendant to
knowingly and intelligently waive his right to trial by jury and then to
reverse the defendant’s convictions and sentences on appeal because of
an untimely waiver, would be to allow the defendant to seek a favorable

5
See also State v. Bourque, 13-552 (La.App. 3 Cir. 12/18/13) (unpublished opinion).

4

p. 7

outcome from the judge and then to resort on appeal to an error that he
instigated in the trial court. Such an outcome would not be in the
interests of justice. See State v. Boudreaux, 2015–1945 (La. 1/6/16),
182 So.3d 940 (Crichton, J., concurring); State v. T.T., 2012–0146 (La.
App. 1st Cir. 9/21/12), 111 So.3d 71, 75.

In one of the cases cited by McKnight, Justice Crichton assigned the following

reasons in his concurrence in the supreme court’s writ denial:

I write separately to note that although the state finely parses
La.C.Cr.P. art. 841, which provides (emphasis added) “[a]n irregularity
or error cannot be availed of after verdict unless it was objected to at
the time of occurrence”, to argue that no contemporaneous objection is
necessary to preserve a claim for review on a pre-verdict supervisory
writ, such an argument runs afoul of principles of judicial economy. See
generally State v. Herrod, 412 So.2d 564, 566 (La.1982) (“Our law
requires that defendant make a contemporaneous objection and state the
reason therefor to allow the trial judge the opportunity to rule on it and
prevent or cure error.”). Moreover, the language of the amended
constitutional provision itself declares that “the waiver shall be
irrevocable.” Thus, once the district court accepted the defendant’s
untimely jury waiver with no objection by the state, and thus no
opportunity to cure the error, that waiver became irrevocable by
operation of the 2010 amendment. It would be unwise for this court to
impair the ability of both the State and defendant to agree on a trial date
less than 45 days before trial, as this would lead to inefficient use of
judicial resources for the reasons discussed at length in the concurrence
in State v. Chinn, 11–2043, pp. 1–2 (La.2/10/12), 92 So.3d 324, 332–
33 (Kimball, C.J., concurring), whose views on this question appear to
have prevailed in State v. Simmons, 11–2130 (La.10/11/11), 74 So.3d
711 (per curiam), noting that “[a]lthough the Defendant did not make a
jury waiver ‘no later than 45 days prior to trial,’ the State did not object
and the case proceeded to trial.” For the above reasons, I concur in the
denial of this writ application.

State v. Boudreaux, 15-1945, pp. 1-2 (La. 1/6/16), 182 So.3d 940, 940 (emphasis

added).

In State v. Simmons, 11-2130 (La. 10/11/11), 74 So.3d 711, 711, the supreme

court stated the following:

Granted. Although the Defendant did not make a jury waiver “no
later than 45 days prior to trial,” the State did not object and the case
proceeded to trial, ending in a mistrial. The ruling of the trial court
allowing the Defendant to revoke his irrevocable waiver of a jury trial
is therefore reversed, and the case is remanded to the trial court for a
bench trial.

5

p. 8

Considering the cases cited above, Defendant’s waiver of his right to jury trial,

although untimely under La.Const. art. I, § 17, became irrevocable once it was

accepted by the trial court. The waiver was made by Defendant without objection

by either Defendant or the State. Any error based on the untimeliness, therefore, is

harmless and waived.

Although Defendant asserts his untimely waiver also violated La.Code

Crim.P. art. 780, this assertion has no merit. Louisiana Code of Criminal Procedure

Article 780 states:

A. A defendant charged with an offense other than one
punishable by death may knowingly and intelligently waive a trial by
jury and elect to be tried by the judge.

B. The defendant shall exercise his right to waive trial by jury in
accordance with Article I, Section 17 of the Constitution of Louisiana.
The waiver shall be by written motion filed in the district court not later
than forty-five days prior to the date the case is set for trial. The motion
shall be signed by the defendant and shall also be signed by defendant’s
counsel unless the defendant has waived his right to counsel.

C. With the consent of the district attorney the defendant may
waive trial by jury within forty-five days prior to the commencement
of trial.

D. A waiver of trial by jury is irrevocable and cannot be
withdrawn by the defendant.

In the present case, there is no indication the State objected to Defendant’s

waiver of his right to jury trial on April 14, 2015. In State v. Jones, 14-172, p. 2

(La.App. 3 Cir. 10/1/14) (unpublished opinion)(emphasis added), this court found

that the State’s lack of objection constituted “consent” to the untimely jury trial

waiver:

La.Code Crim.P. art. 780(C) allows a waiver within forty-five days
prior to the commencement of trial with the consent of the district
attorney. As previously mentioned, Defendant waived his right to a jury
trial on September 16, 2013. Court minutes indicate Defendant was
present in open court with his attorney when his right to a trial by jury
was discussed and waived. There is no indication that the State objected

6

p. 9

to the waiver. For those reasons, we conclude that no violation of
La.Code Crim.P. art. 780 occurred.

Based on the State’s consent in the present case, no violation of La.Code Crim.P.

art. 780 occurred.

Defendant additionally asserts that the record contains no written waiver of

jury trial as required by La.Code Crim.P. art. 780. However, the court minutes and

transcript reflect that defense counsel advised the court in Defendant’s presence and

that Defendant elected to be tried by a judge alone. The minutes further indicate the

trial court questioned Defendant, and Defendant waived a jury trial as to all charges.

In State v. Bell, 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830, this court

held that the absence of a written waiver of jury trial as required by La.Code Crim.P.

art. 780 was harmless error where the defendant and his counsel were in open court

when the judge addressed the defendant’s right to a jury trial and his waiver thereof.

Accordingly, the error in failing to obtain a written waiver in violation of La.Code

Crim.P. art. 780 is harmless under the facts of this case.

For the foregoing reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant contends the trial court violated his constitutional right to a jury

trial by failing to ensure Defendant knowingly and intelligently waived his right to

a jury trial. Defendant claims the colloquy between the trial judge and Defendant

concerning Defendant’s waiver of his right to a jury trial shows the trial judge failed

to advise Defendant of “the choice confronting him, on the one hand, to be judged

by a group of people from the community, and on the other hand, to have his guilt

or innocence determined by the judge.” The State responds that the trial court’s

colloquy was sufficient, that Defendant has waived his right to challenge the waiver

7

p. 10

by failing to object, and that any error is harmless in light of the evidence against

Defendant.

At a hearing held April 14, 2015, the State amended the grand jury indictment

against Defendant to charge two additional charges – possession of a firearm by a

convicted felon and distribution of marijuana. The trial judge and Defendant

engaged in the following colloquy:

THE COURT:

- - right. Okay.

Mr. Dubroc, I need to talk with you too. Sir, there’s been
extensive negotiations about these charges that you’re scheduled for
trial this week on, they’re very serious charges. And, sir, you are on
probation for a robbery and now you’re charged with shooting up the
neighborhood and hitting two people. Two counts of attempted murder,
that’s the charge. Your attorney and I and the State’s counsel has - -
we’ve been talking about it. I think there’s a firearm enhancement filed.

MR. HOLMES:

That’s - - that’s correct, Judge.

THE COURT:

Which means that if you’re convicted of even one of the
attempted murders the minimum sentence is 15. An offer has been
tendered to you which is a - - I will tell you is a reasonable offer. And
it’s up to you, sir, if you don’t want to accept the offer, that is fine and
there’s no offense taken, there’s no harm done. I just want this on the
record. If that’s what you - - if you want to take what’s been offered
today the cases are resolved. If you do not there’s either two ways to
take care of the case, guilty plea or no - - well, three ways, I guess,
guilty plea, no contest plea, or a trial. Now, if we go to the trial route
the State is not going to amend the bill to one count of attempted
murder. It’s going to be two counts of attempted murder. That changes
the plea offer or the sentencing recommendations or my considerations
quite a bit. With these new changes, if you’re convicted on either one
of those, that changes everything. If a habitual offender bill is filed and
you’re found to be a second or a third or a fourth habitual offender with
these types of offenses it’s lights out. Do you understand what I’m
saying?

MR. DUBROC:

Yes, sir.
8

MR. SHELTON:
12

p. 15

In all matters he’s waived the right to a jury trial.

The supreme court has stated the following regarding the adequacy of a jury

trial waiver:

It is preferred but not statutorily required for the defendant to waive his
right to a jury trial personally. State v. Pierre, 2002–2665 (La.3/28/03),
842 So.2d 321. Defense counsel may waive the right on his client’s
behalf, provided that the defendant’s decision to do so was made
knowingly and intelligently. Id. The defendant’s jury waiver is deemed
knowing and intelligent when he understands “that the choice
confronting him is, on the one hand, to be judged by a group of people
from the community, and on the other hand, to have his guilt or
innocence determined by a judge.” United States ex rel. Williams v.
DeRobertis, 715 F.2d 1174, 1180 (7th Cir.1983), cert. denied, 464 U.S.
1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984). The defendant’s prior
criminal history may be considered in determining whether the
defendant knowingly and intelligently waived his right to a jury
trial. See State v. Phillips, 365 So.2d 1304, 1309 (La.1978).

In these proceedings, the defendant was aware prior to the instant
criminal charges of his due process entitlements as they related to a
choice to have his guilt or innocence determined by a judge or a jury of
his peers. Among other criminal matters, the defendant has past
experience as an accused in the trial of a criminal prosecution where he
was found guilty by a jury. See State v. Spurlock, 539 So.2d 977
(La.App. 4th Cir.1989). In the instant case, the trial record and defense
counsel’s hearing testimony, which was not found to lack credibility,
reflect defense counsel, after consulting with the defendant, waived the
defendant’s right to a jury trial in open court in the presence of the
defendant. Weeks later, the defendant proceeded to a bench trial
without raising an objection to the absence of a jury. Under the given
facts, the defendant’s waiver of a jury trial was knowing and intelligent.

State v. Spurlock, 15-1173, pp. 1-2 (La. 9/25/15), 175 So.3d 955, 955-56.

In the present case, Defendant was present when his counsel informed the trial

court of Defendant’s desire to waive jury trial and informed the trial court that he

had discussed the trial proceedings with Defendant. The trial court also had a

personal colloquy with Defendant. The trial court explained to Defendant the

seriousness of the charges against him and was able to evaluate Defendant’s capacity

to understand what was happening. As appellate counsel points out in brief, the

record reflects that some of Defendant’s responses were not verbal. Defendant did,
13

p. 16

however, answer “Yes, sir[,]” when the trial court asked him if he was waiving his

right a jury trial and willing to be tried by the judge alone. The trial judge made sure

Defendant understood that his decision meant that he was going to be tried by the

judge alone. See Bazile, 144 So.3d at 734, where the supreme court held, “We hold

a criminal defendant’s waiver of his right to trial by jury is knowing and intelligent

when he demonstrates his understanding that he will proceed to trial before a judge

upon that waiver.” Additionally, Defendant has experience in the judicial system,

having previously been convicted of simple robbery on May 17, 2013. Likewise,

weeks after Defendant waived his right to a jury trial, he proceeded to a bench trial

with no objection. Finally, appellate counsel points to nothing in the record to

indicate that Defendant had any difficulty understanding his waiver of jury trial.

For the foregoing reasons, we find that this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE:

In this assignment of error, Defendant contends the trial court committed

“reversible error patent” by failing to advise Defendant of his constitutional right to

remain silent at his habitual offender proceeding. For the reasons discussed below,

this assignment of error lacks merit.

In State v. Lynn, 52,125, p. 17 (La.App. 2 Cir. 8/15/18), 251 So.3d 1262,

1272-73, the court stated the following regarding the rights of which a defendant

must be advised when charged as a habitual offender:

La. R.S. 15:529.1(D)(1)(a) requires that the defendant be advised
of the specific allegations contained in the habitual offender bill of
information and his right to a formal hearing at which the state must
prove its case. Implicit in this requirement is the additional requirement
that the defendant be advised of his constitutional right to remain silent.
State v. Robinson, 46,091 (La. App. 2 Cir. 4/20/11), 63 So.3d 1113,
writs denied, 11-0901, 111016 (La. 11/23/11), 76 So.3d 1148, 1149;
State v. Delaney, supra.

14

p. 17

In the present case, at a hearing held July 29, 2015, Defendant entered a denial

to the charge of habitual offender, second offense. Although the State wanted to

proceed that same date with the habitual offender hearing, the trial judge found that

Defendant needed time to prepare and scheduled the hearing for a later date. The

trial court noted that the habitual offender charge required a trial. Additionally,

defense counsel noted that Defendant was entitled to a hearing. The trial court

informed Defendant as follows:

THE COURT:

Okay. I want to put something on the record just very briefly and
tell Mr. Dubroc myself, and he can confer with counsel and get more
clarification or some more information about it. Mr. Dubroc, as you
were here - - when you were here earlier this morning I thought maybe
it would be unfair to you, sir, to have you arraigned on a habitual
offender trial on habitual offender bill, which necessitates, which
requires a trial. Have you plead guilty and then moments later start the
trial. That’s just - - that was something in my mind that it just seems
fundamentally unfair and not in accordance with due process. And the
- - we’ve looked at some cases and that is generally what the cases are
saying. There must be some preparatory time. There must be some
time - - some delay between the actual notice of the preceding [sic] and
the actual trial of the proceeding. So that’s all I’m going to say about
that and that’s why we’re continuing the matter. And the State and the
defense counsel and I had a conference, along with my law clerk and
everybody’s pretty much in agreement that that is the situation. And so
that’s why we’re doing what we’re doing.

MR. SHELTON:

Do you understand?

MR. DUBROC:

Yes, sir.

Subsequently, at the proceeding held August 24, 2015, the trial court stated

the following to Defendant:

THE COURT:

Okay. Counsel, at the table. Unless there’s going to be an
admission.

15

p. 18

Yes, sir.

THE COURT:

Okay. Let the admission be made. Mr. Dubroc., I find that you
are a second felony offender, at least a second felony offender.

We find that although the trial court advised Defendant of his right to have

the State prove that he was a second habitual offender, the trial court did not
17

p. 20

specifically advise Defendant of his right to remain silent. Although the State

appears to concede in brief that the trial court failed to advise Defendant of his right

to remain silent, we find that the language used by the trial court was sufficient to

constitute an advice of Defendant’s right to remain silent. In State v. Ray, 547 So.2d

1350, 1358–59 (La.App. 3 Cir.), writ denied, 553 So.2d 470 (La.1989), this court

stated the following regarding similar language used by a trial court:

In this case, before the trial judge accepted the defendant’s guilty
plea as a habitual offender, he made the following statement to the
defendant:

“All right. You understand that you are not required to
admit to the other offenses, or offense, that you could have
a hearing on them if you wanted, and if you needed time
for that hearing, the Court would give you time to prepare
for it. You understand that?”

Defendant acknowledged that he understood these rights. It is
clear that defendant was adequately cautioned in language that he could
understand about his right to remain silent and to have the State prove
at a court hearing his identity as an habitual offender.

Likewise, we find the trial court in the present case used language to

adequately inform Defendant that he could remain silent and not admit to his status

as a habitual offender. The trial court explained to Defendant that the denial he

already entered required the State to produce evidence of Defendant’s prior

conviction. The trial court additionally informed Defendant that he was not being

forced to either admit or deny his status as a second habitual offender. Thus, the

trial court adequately cautioned Defendant in language that Defendant could

understand about his right to remain silent and his right to have the State prove at a

court hearing his identity as a habitual offender.

We note that, regardless of whether the trial court did not adequately advise

Defendant of his right to remain silent, the error is nevertheless harmless. In a

similar situation, this court has stated the following:

18

p. 21

It is correct that the trial court did not advise the defendant that
he had the right to remain silent and that the state had the burden of
proving beyond a reasonable doubt that he was the individual who
committed the 2002 offense. It is also correct that “[a]dmissions of
identity at a multiple offender hearing implicate the defendant’s Fifth
Amendment privilege against self-incrimination.” State v. Harris, 95–
900, p. 1 (La.5/19/95), 654 So.2d 680, 680. However, in Harris, the
supreme court also explained that:

Nevertheless, multiple offender proceedings “simply
should not be equated (at least for purposes of determining
the validity of an admission) to trials of guilt or
innocence.” State v. Martin, 427 So.2d 1182, 1185
(La.1983). This Court has therefore declined to adopt as a
constitutional prerequisite to a valid admission of identity
at a multiple offender proceeding a procedure analogous
to the Boykin colloquy which must accompany a valid plea
of guilty. Id., 427 So.2d at 1185, n.7. In the absence of any
allegation or showing that the admission was involuntary,
compare State v. Johnson, supra, the availability of post-
conviction relief turns on whether the proceedings as a
whole accorded the petitioner fundamental fairness and
due process of law. See Holloway v. Lynaugh, 838 F.2d
792 (5th Cir.), cert. denied, 488 U.S. 838, 109 S.Ct. 104,
102 L.Ed.2d 80 (1988); State v. Firmin, 522 So.2d 1181
(La.App. 4th Cir.), writ denied, 532 So.2d 759 (La.1988).

Id.

As noted in State v. Fletcher, 00–968, pp. 3–4 (La.App. 3 Cir.
12/6/00), 776 So.2d 1240, 1243, writ denied, 01–342 (La.12/14/01),
803 So.2d 986, this court, addressing an assigned error, discussed the
pertinent case law on this issue:

While La.R.S. 15:529.1 does not specifically
address the issue of a defendant’s right to remain silent, in
State v. Johnson, 432 So.2d 815 (La.1983), writ granted
on other grounds, 438 So.2d 1113 (La.1983), appeal after
remand, 457 So.2d 1251 (La.App. 1 Cir.1984), appeal
after remand, 471 So.2d 1041 (La.App. 1 Cir.1985), the
supreme court concluded that the statute clearly
recognizes that a defendant has the right to remain silent
and thus implicitly provides that a defendant should be
advised by the trial court of this right before he
acknowledges or confesses his status as an habitual
offender. Thus, the trial court erred in failing to advise the
defendant of this right before accepting his admission that
he was the person who was convicted of the predicate
offenses. The question is whether or not this is harmless
error.

19

p. 22

As in Fletcher, we are called on to determine whether the trial court’s
failure to advise the defendant of his right to remain silent and of the
state’s obligation to prove his identity beyond a reasonable doubt is
harmless error.

We conclude that it is harmless error. The state introduced the
record of the 2002 proceedings without objection from the defendant,
and this exhibit establishes the accuracy of the defendant’s admission.
The defendant was represented by counsel at the habitual offender
hearing and, on appeal, the defendant does not assert that his admission
was involuntary. See State v. Payne, 94–1628 (La.App. 3 Cir. 5/22/96),
677 So.2d 527. Thus, without the defendant’s admission, the trial court
would have reached the same result.

State v. Bias, 12-610, pp. 3-4 (La.App. 3 Cir. 12/5/12) (unpublished opinion), writ

denied, 14-746 (La. 1/16/15), 157 So.3d 1123.

In State v. Cook, 11-2223, pp. 1-2 (La. 3/23/12), 82 So.3d 1239, 1240–41, the

supreme court stated the following regarding a trial court’s technical non-

compliance with the advice of rights required by La.R.S. 15:529.1:

Writ granted. The decision of the court of appeal is reversed in
part, and the trial court’s adjudication and sentencing of defendant as a
habitual offender are reinstated. The requirements of R.S.
15:529.1(D)(1)(a) that the court inform a defendant of the allegations
in a habitual offender bill of information, and of his right “to be tried as
to the truth thereof according to law,” should not serve as technical traps
for an unwary but otherwise conscientious judge. . . . It therefore
appears that defendant was fully informed of the allegations in the
habitual offender bill and of his right to contest those allegations, with
a correlative right to remain silent at the hearing, that he thereafter
voluntarily stipulated to the habitual offender allegations after
conferring with counsel, and that the trial court adjudicated him a
habitual offender on the basis of not only his stipulation but also the
documentary evidence introduced by the state at the hearing.
Defendant’s interests were fully protected and any technical non-
compliance with the statutory directives in R.S. 15:529.1(D)(1)(a) was
harmless. See State v. Brown, 11–1656 (La.2/10/12), 82 So.3d 1232.

As in the above cases, here, the trial court’s technical non-compliance with

the advice of rights in the present case was harmless error. Before sentencing

Defendant as a second habitual offender, the trial court found Defendant guilty of a

probation violation, revoked his probation, and ordered that he serve the previously

suspended sentence. The trial court heard argument by both parties and then
20

p. 23

imposed a sentence on each of Defendant’s convictions, including the charges for

which he was adjudicated a second habitual offender. After the imposition of

sentences, defense counsel suggested the court hear the testimony of Defendant’s

probation officer. The trial court heard the testimony of Defendant’s probation

officer, who testified that he supervised Defendant while Defendant was on

probation for simple robbery. According to the probation officer, Defendant was

still on probation when he committed the other charges. In addition to the testimony

of Defendant’s probation supervisor at the habitual offender hearing, a probation

officer testified at trial that her office was currently supervising Defendant’s

probation for simple robbery. Judge Ron Ware sentenced Defendant on the simple

robbery charge on May 17, 2013, and then presided over both Defendant’s current

trial and his habitual offender hearing. In State v. Brown, 11-1656, p. 2 (La.

2/10/12), 82 So.3d 1232, 1234 (quoting State v. Jones, 332 So.2d 461, 462

(La.1976)) the supreme court noted that during a habitual offender proceeding, a

trial judge may take judicial notice “of any prior proceeding which was a part of the

same case he had previously tried.”

Although the trial court in the present case did not specifically state it was

taking judicial notice, the record is clear that the same trial judge presided over

Defendant’s sentencing for his predicate conviction of simple robbery, presided over

his current trial and habitual offender proceeding, and heard all of the evidence

presented at each proceeding.

Moreover, the present case is distinguishable from cases wherein reversible

occurred because of the trial court’s failure to advise a defendant of his right to

remain silent prior to his admission as a habitual offender. In State v. Cousin, 17-

1135, pp. 13-14 (La.App. 1 Cir. 12/21/17), 240 So.3d 954, 962, the first circuit found

reversible error based on the trial court’s failure to advise Cousin of his right to
21

p. 24

remain silent before Cousin admitted to his status as a habitual offender. Unlike the

present case, the State offered no evidence of Cousin’s status as a habitual offender.

In State v. Dugas, 11-165 (La.App. 3 Cir. 4/25/12) (unpublished opinion), this court

found reversible error occurred when Dugas was not advised of his rights before

admitting to his status as a habitual offender. Unlike the present case, the State in

Dugas failed to introduce any independent evidence or testimony to establish Dugas’

identity as a habitual offender. Additionally, the trial court in Dugas failed to advise

Dugas of both his right to a hearing and his right to remain silent. In State v. Boutte,

09-404 (La.App. 3 Cir. 1/13/10), 27 So.3d 1111, cited in Defendant’s brief, Boutte

stipulated to his identity as the person who committed the prior conviction without

being advised of his rights. Although the State introduced independent evidence of

the predicate convictions themselves, the State offered no independent evidence that

Boutte was the person who committed the predicate convictions. To the contrary,

the present Defendant was advised of his right to maintain his denial and require the

State to prove his status as a habitual offender. Additionally, the present trial court

heard evidence both at trial and at the habitual offender proceeding that established

Defendant’s identity as the person who committed the simple robbery used as his

predicate conviction. Thus, without Defendant’s admission, the trial court in the

present case would have reached the same result.

For the foregoing reasons, this court finds the trial court sufficiently advised

Defendant of his right to remain silent. Accordingly, this assignment of error lacks

merit.

ASSIGNMENT OF ERROR NUMBER FOUR:

Defendant contends that since his admission to his status as a second habitual

offender was unconstitutional and since the State offered no independent evidence

of Defendant’s status as a second habitual offender, the evidence was insufficient to
22

p. 25

adjudicate Defendant as a second habitual offender. For the reasons discussed in the

previous assignment of error, Defendant’s admission was not unconstitutional.

Additionally, as noted in the previous assignment of error, the State did introduce

the testimony of Defendant’s probation officer that Defendant was on probation for

simple robbery when he committed the offenses at issue in the present case. Thus,

even without Defendant’s admission, the State produced evidence of Defendant’s

status as a second habitual offender. Accordingly, this assignment lacks merit.

DECREE:

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

23

p. 26

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-142

STATE OF LOUISIANA

VERSUS

BISHOP SLADE DUBROC

Pickett, J., dissenting with written reasons.

I respectfully dissent.

I agree with the majority’s conclusion that the defendant’s argument of

untimeliness is without merit. In fact, La.Code Crim.P. art. 780(C) specifically

allows a defendant to waive his right to a trial by jury within forty-five days prior to

the commencement of trial with the consent of the district attorney. The district

attorney tacitly consented to the waiver by not objecting. I find this argument to be

without merit.

The failure to file a written motion as required by La.Code Crim.P. art. 780(B)

is, however, more problematic, and I further disagree that the record reflects that the

defendant made a knowing and intelligent waiver of his right to a trial by jury.

The right to a trial by jury is one of our most basic and fundamental rights as

American citizens. It is a right that predates the formation of our great country. In

fact, one of the grievances against the tyranny of George III listed in the Declaration

of Independence is that he was “depriving us in many cases, of the benefits of Trial

by Jury.” Having been deprived of this right by a tyrannical government, the framers

of the constitution made certain it was protected for all people with its inclusion in

Article III, Section 2 of the United States Constitution and Sixth Amendment to the

Constitution. The right to a trial by jury has always been viewed as one of our most

basic rights in the criminal justice system.

1

p. 27

The defendant contends the trial court violated his constitutional right to a trial

by jury by failing to ensure that he knowingly and intelligently waived his right to a

jury trial.

Except when charged with a capital offense, a defendant may waive the right

to a trial by jury and be tried by a judge. La Const. Art I § 17; La.Code Crim.P. art

780(A); La.Code Crim.P. art. 782(B). Waiver of the right to a trial by jury is never

presumed. State vs. McCarroll, 337 So.2d 475 (La.1976) To be valid, a defendant’s

waiver of his right to a jury trial must be knowing and intelligent. Adams v. U.S. ex

rel. McCann, 317 U.S. 269 (1942); La.Const. art. 1, § 17(A); La. Code Crim.P. art.

780(A). “[W]hether or not there is an intelligent, competent, self-protecting waiver

of jury trial by an accused must depend on the unique circumstances of each case.”

Adams, 317 U.S. at 278.

Further, in Louisiana, La.Code Crim.P. art. 780(B) required that a

waiver shall be by written motion filed in the district court not later than
forty-five days prior to the date the case is set for trial. The motion
shall be signed by the defendant and shall also be signed by the
defendant’s counsel unless the defendant has waived is right to counsel.

(Emphasis added.) The word “shall” in a statute means the provision is mandatory

and not permissive or discretionary. Therefore, failing to comply with Article

780(C) which requires a written motion to waive a jury trial is necessarily error.

In the matter before the court, there was no written motion to waive a jury trial

filed by the defendant. The court’s acceptance of an oral motion in the absence of a

written motion is error. The majority finds it to be harmless error. I disagree and

will discuss it more fully below.

A criminal defendant’s jury waiver is deemed knowing and intelligent when

he understands “that the choice confronting him is, on the one hand, to be judged by

a group of people from the community, and on the other hand to have his guilt or

innocence determined by a judge.” State v. Bazile, 12-2243, p. 17 (La. 5/7/13), 144

2

p. 28

So.3d 719, 733, quoting United States ex rel. Williams v. DeRobertis, 715 F.2d 1174,

1180 (7th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982 (1984). “That is all

the defendant needs to know and understand.” Id. at 733. “Greater proof of knowing

and intelligent waiver has been neither constitutionally nor jurisprudentially

required.” Id. at 733, quoting State v. Johnson, 389 So.2d 1302, 1305 (La.1980).

The defendant claims the colloquy between the trial judge and the defendant

concerning the defendant’s waiver of his right to a jury trial shows the trial judge

failed to advise the defendant of “the choice confronting him” between a jury or

bench trial. The majority finds that the colloquy to be sufficient. A review of the

colloquy that took place at the time of the waiver and the record up to the time of the

oral motion to waive the jury trial, reflect a colloquy took place, but with very little

participation by the defendant.

The record reflects the following colloquy between the court, the prosecutor

Mr. Holmes, defense counsel Mr. Shelton, and the defendant.

THE COURT:

- - right. Okay.

Mr. Dubroc, I need to talk with you too. Sir, there’s been
extensive negotiations about these charges that you’re scheduled for
trial this week on, they’re very serious charges. And, sir, you are on
probation for a robbery and now you’re charged with shooting up the
neighborhood and hitting two people. Two counts of attempted murder,
that’s the charge. Your attorney and I and the State’s counsel has - -
we’ve been talking about it. I think there’s a firearm enhancement filed.

MR. HOLMES:

That’s - - that’s correct, Judge.

THE COURT:

Which means that if you’re convicted of even one of the
attempted murders the minimum sentence is 15. An offer has been
tendered to you which is a - - I will tell you is a reasonable offer. And
it’s up to you, sir, if you don’t want to accept the offer, that is fine and
there’s no offense taken, there’s no harm done. I just want this on the
record. If that’s what you - - if you want to take what’s been offered
today the cases are resolved. If you do not there’s either two ways to

In all matters he’s waived the right to a jury trial.

In this case, the defendant was present with his counsel. Defense counsel

initially stated the defendant was requesting a trial by jury and then, almost

immediately, changed course and stated the defendant wanted a bench trial. The

record does not reflect why. The trial court had a colloquy which primarily involved

defense counsel. During the entire colloquy, the defendant said, “Yes, sir,” and

nothing more, three times. The defendant did answer “yes, sir,” when instructed by

his attorney to verbally respond when the trial court asked him if he was waiving his

right to a jury trial and willing to be tried by the judge alone. When asked by the

trial judge if he understood he was waiving a jury, there was no verbal response.

I have reviewed the colloquy above and the entire record up through the

hearing when the waiver was made. It is not clear to me, from the record, that this

defendant either had the capacity to understand the implications of waiving a jury

trial or a clear understanding of the choices before him. There is no information in

the record which reflects the defendant’s education level, or even if he is literate.

There is no explanation, even bare bones, regarding the nature of a jury trial, that a

jury is composed of ordinary people from the community, the number who must

concur to render a verdict, or any information about the jury process at all.

The state argues that the defendant has a prior conviction and is, therefore,

familiar with the justice system. The fact of a previous conviction, with no further

information, is not dispositive of this issue.

It is possible the trial court had knowledge of this defendant which preceded

this matter and believed the defendant understood what the waiver entailed and the

8

p. 34

effect of that waiver. We are, however, confined to the record before us. I do not

agree that this record establishes that this defendant understood the choices before

him and, therefore, I cannot agree he made a knowing and intelligent waiver based

on this record and this colloquy.

The failure of the defendant to comply with the mandates of Art. 780(C) is

also problematic. The majority finds this failure is harmless error, citing State v.

Bell, 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830, for the proposition that failure

to comply with the mandatory language of La.Code Crim.P. art. 780(C) is harmless

if no one objects. In Bell, this court recognized the error in its error patent review

but determined it to be harmless. The only assignment of error raised by the

defendant in Bell pertained to a sentencing issue. Neither the state nor the defendant

raised it as error and the conviction was not challenged. The same situation is found

in State v. Blue, 09-1111 (La.App. 3 Cir. 4/7/10), 34 So.3d 447, and State v. Charles,

15-518 (La.App. 3 Cir. 1/25/15), 178 So.3d 1157, which are cited by the state.

In both Blue and Charles the substance of the appeals pertained strictly to

sentencing issues. In Blue there was no written waiver filed. In Charles, a written

waiver was filed, but was signed only by counsel and not by the defendant. Neither

the defendant nor the state raised the failure to file a written waiver as error on

appeal, and the defendant did not appeal the verdict of the court, and there was no

issue raised by the parties whatsoever about the validity of the waiver. The court

recognized the error pertaining to the lack of a written waiver in its error patent

review in all three of these cases. In each of the cases the court noted the defendant’s

presence in court when the verbal waivers were made. In Bell, Blue, and Charles,

the court determined that under the facts of those cases, the error was harmless.

The facts in the matter before us are very different from the facts in Bell, Blue,

and Charles. To conclude that the mere presence of a defendant in court when an

oral waiver is made is automatically harmless error would be to render the mandatory

9

p. 35

language in Article 780(C) meaningless. The majority’s reliance on these cases, each

of which involved only the appeal of the sentence and not of which raised the issue

as error, is misplaced.

If, in this case, the defendant had filed a written motion, properly executed, it

may have provided to this court a clearer understanding about the defendant’s state

of mind and whether he was making a “knowing and intelligent waiver” of a trial by

jury. Under the facts of this case, I cannot find the violation of Article 780(C)

harmless error.

The failure of the defendant to file a written motion in compliance with Article

780(C), coupled with the lack of information in the record regarding the defendant’s

understanding of the choice before him and whether he understood the implications

of waiving a trial by jury, renders his oral waiver invalid. The majority’s opinion

holds that if a defendant is present in court and says “Yes, sir,” without any further

information as to his understanding, he has waived a basic constitutional right under

our law. I cannot agree with that conclusion. Under the facts of this case, I cannot

conclude the defendant made a knowing and intelligent waiver of his right to a jury

trial.

Because I find this assignment of error has merit, I would set aside the

defendant’s conviction. Because I would reverse the underlying conviction, I would

also vacate the habitual offender conviction.

10

p. 36

State of Louisiana v. Bishop Slade Dubroc

The holding in the court’s own words

Authorities cited

Opinion text

STATE OF LOUISIANA

VERSUS

BISHOP SLADE DUBROC

AFFIRMED.

FACTS:

ERRORS PATENT:

ASSIGNMENT OF ERROR NUMBER ONE:

ASSIGNMENT OF ERROR NUMBER TWO:

THE COURT:

MR. HOLMES:

THE COURT:

MR. DUBROC:

THE COURT:

MR. SHELTON:

THE COURT:

MR. SHELTON:

THE COURT:

MR. SHELTON:

THE COURT:

MR. SHELTON:

THE COURT:

MR. SHELTON:

THE COURT:

MR. SHELTON:

THE COURT:

MR. SHELTON:

MR. DUBROC:

MR. SHELTON:

THE COURT:

MR. HOLMES:

THE COURT:

MR. SHELTON:

THE COURT:

MR. SHELTON:

THE COURT:

MR. HOLMES:

THE COURT:

MR. HOLMES:

THE COURT:

MR. HOLMES:

THE COURT:

MR. HOLMES:

THE COURT:

MR. HOLMES:

MR. DUBROC:

MR. SHELTON:

MR. DUBROC:

THE COURT:

MR. DUBROC:

MR. SHELTON:

MR. DUBROC:

MR. HOLMES:

THE COURT:

DEPUTY CLERK:

THE COURT:

ASSIGNMENT OF ERROR NUMBER THREE:

THE COURT:

MR. SHELTON:

MR. DUBROC:

THE COURT:

MR. DUBROC:

THE COURT:

MR. DUBROC:

THE COURT:

MR. SHELTON:

MR. DUBROC:

THE COURT:

MR. HOLMES:

THE COURT:

MR. SHELTON:

THE CLERK:

MR. SHELTON:

THE COURT:

THE CLERK:

MR. HOLMES:

MR. SHELTON: