State of Louisiana v. Brandon Chase Gee

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-217

STATE OF LOUISIANA

VERSUS

BRANDON CHASE GEE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 15610-17
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Van H. Kyzar, and Candyce G. Perret, Judges.

CONVICTION AFFIRMED.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.

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

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 1481
Monroe, LA 71201
(318) 855-6038
COUNSEL FOR DEFENDANT/APPELLANT:
Brandon Chase Gee

SAUNDERS, Judge.

On August 23, 2017, Defendant, Brandon Chase Gee, was charged by bill of

information with the aggravated second degree battery of his mother, Cheryl Gee-

Finley, in violation of La.R.S. 14:34.7. On April 30, 2018, Defendant filed a “Motion

to Amend Plea of Not Guilty to Not Guilty and Not Guilty by Reason of Insanity

and Incorporated Memorandum of Law.” The motion was granted the same day.

Also on April 30, 2018, the trial court appointed a sanity commission composed of

Drs. Garrett Ryder and James Anderson to evaluate Defendant’s mental state at the

time of the offense.

On January 10, 2019, Defendant filed a “Motion for Appointment of

Psychiatrist to Determine Defendant’s Mental State at Time of Offense.” The same

day, the trial court appointed a new sanity commission, this time composed of Drs.

Andrew Thrasher and Patrick Hayes, to evaluate Defendant’s mental state at the time

of the offense. On February 4, 2019, counsel filed a motion to continue trial which

indicated the initial sanity commission only evaluated Defendant’s competency to

stand trial, not his mental state at the time of the offense; additionally, the

commission failed to perform the appropriate examination at any point, necessitating

the appointment of the second sanity commission.

Trial commenced on April 9, 2019, and on April 10, 2019, the jury found

Defendant guilty as charged. On June 11, 2019, Defendant filed a motion for new

trial, asserting the verdict was contrary to the law and evidence and that the ends of

justice would best be served by the granting of a new trial. The motion was denied

the same day. Sentencing was held on June 17, 2019.

At the outset of the sentencing hearing, Defendant declared that he had fired

trial counsel and that she was no longer his attorney. The trial court, without any

inquiry into Defendant’s competency to represent himself, his educational

background, or any other relevant information, released trial counsel and allowed

Defendant to represent himself at sentencing. Defendant proceeded to accuse trial

counsel of intentionally sabotaging his case and actively helping the prosecution,

declared that every part of the Calcasieu Parish justice system was corrupt, and stated

he had been wrongfully convicted and conspired against. The trial court, after stating

it was “disappointed and taken aback” by Defendant’s lack of remorse, sentenced

Defendant to eight years at hard labor and ordered that the first year be served

without the benefit of probation, parole, or suspension of sentence after the State

indicated the statute required the one-year restriction on benefits.

Defendant now appeals his conviction and sentence. Defendant contends

there was insufficient evidence to support his conviction, for three reasons: (1) the

State failed to prove he had specific intent to commit serious bodily injury; (2) he

did not know right from wrong at the time of the offense; and (3) he acted in self-

defense. Defendant also contends the trial court erred in allowing him to represent

himself at sentencing without any investigation into his ability to represent himself,

that the eight-year sentence imposed by the trial court was constitutionally excessive,

and that the trial court erred in denying Defendant’s motion to reconsider sentence.

FACTS:

On June 15, 2017, Cheryl Gee-Finley returned home from work at around

11:00 p.m. and removed some items from her truck, including a table leg and some

garbage bags. Later that night, Defendant, who lived with her, returned home.

Sometime after Defendant returned home, an altercation took place between Ms.

Finley and Defendant which left Ms. Finley severely injured and serves as the basis

for Defendant’s aggravated second degree battery charge. The circumstances

surrounding the altercation were disputed at trial.

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Ms. Finley testified that she and Defendant argued about the garbage bags she

had brought in. Ms. Finley testified that later in the night she played scratch offs and

had a winning ticket. She testified that she remembered beginning to leave to cash

in the scratch off ticket, but then she woke up on the ground with severe injuries and

the last thing she remembered was reaching for her keys.

Defendant stated that his mother was suffering from delusions which were

becoming dangerous. Defendant claims that when he returned home on the night in

question, his mother began banging on the door to his bedroom demanding to know

where her trash bags were. Defendant then stated that the last thing he can remember

is her coming at him with a knife and “the big stick with the screw hanging out of

it,” asserting he blacked out when his life was threatened. After being attacked,

Defendant stated his next memory was holding his bleeding arm, unaware of the

location of the guitar that he had previously been holding. When later questioned

and confronted with pictures of his mother’s injuries, Defendant claimed she came

at him with a knife and he kept her at bay with his guitar.

The table leg that Ms. Finley had brought home that night was found in the

living room, although Ms. Finley was adamant that she had brought it to her bedroom

that night. A knife was also found on the floor next to Ms. Finley, although she stated

that she had no idea how it ended up next to her.

Defendant was found to have three cuts on his arm after the night in question.

Yolanda Charles, a paramedic who looked at Defendant’s injuries, noted Defendant

had three shallow lacerations to the center of his left forearm and stated Defendant

told her he was cut with a kitchen knife. Ms. Charles testified the cuts did not appear

to be defensive wounds, noting there were three cuts in a row with no other marks

on his arm.

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Dr. Patrick Hayes testified that his interviews and review of medical records

led him to the conclusion that Defendant understood the difference between right

and wrong on June 16, 2017. He noted there was no evidence of any “serious

persistent mental illness” in the days and months leading up to the incident. He also

noted there was no evidence that on the night of the incident Defendant “was

disorganized, catatonic, delusional[, or] manic.” Dr. Hayes testified Defendant had

schizotypal personality disorder, which he characterized as “schizophrenia-like, or

schizophrenia-light.”

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 concerning Defendant’s sentence. Additionally, trial counsel

has raised two possible errors patent in his assignments of error – one in Assignment

of Error Number Two and one in Assignment of Error Number Three. We will

discuss the possible errors patent in their respective assignments of error.

We find that the trial court erred in that Defendant received an indeterminate

sentence. Although the court minutes and the commitment order reflect the sentence

was ordered to be served in the Louisiana Department of Corrections, the sentencing

transcript does not so indicate. According to the sentencing transcript, the trial court

sentenced Defendant to eight years in “jail.” Although the jurisprudence states that

committing a prisoner to the “Department of Corrections” necessarily commits him

to hard labor, this court has found no cases stating that sentencing a defendant to

“jail” necessarily commits him to hard labor or without hard labor. State v. Lisenby,

534 So.2d 996 (La.App. 3 Cir. 1988), La.R.S. 15:824(C). Louisiana Revised

Statutes 14:34.7 requires imprisonment for up to fifteen years with or without hard

labor. Thus, the trial court’s failure to indicate whether the sentence is to be served
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with or without hard labor renders the sentence indeterminate, requiring the sentence

be vacated and the case remanded for resentencing. State v. Ervin, 17-18 (La.App. 3

Cir. 12/13/17), 258 So.3d 677. Consequently, we vacate the sentence and remand

the case for resentencing with instructions that the trial court specify whether the

sentence is to be served with or without hard labor.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Defendant contends there was insufficient

evidence to convict him of second degree battery because: (1) the State failed to

prove he had the necessary specific intent to commit serious bodily injury: (2) he did

not know right from wrong at the time of the offense: and (3) he acted in self-defense.

The analysis for insufficient-evidence claims is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant was convicted of aggravated second degree battery, which is

defined by La.R.S. 14:34.7(A) as “a battery committed with a dangerous weapon

when the offender intentionally inflicts serious bodily injury.” Louisiana courts have

repeatedly held aggravated second degree battery requires specific intent. See State

v. Clanton, 19-316 (La.App. 4 Cir. 11/6/19), 285 So.3d 32; State v. Harris, 17-303
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(La.App. 5 Cir. 12/20/17), 235 So.3d 1354, writ denied, 18-160 (La. 6/15/18), 257

So.3d 675; State v. Harrison, 46,325 (La.App. 2 Cir. 5/18/11), 69 So.3d 581.

Under La.R.S. 14:10(1), “Specific criminal intent is that state of mind which

exists when the circumstances indicate that the offender actively desired the

prescribed criminal consequences to follow his act or failure to act.” As noted in

Harrison, “[s]uch state of mind can be formed in an instant. State v. Cousan, 94-

2503 (La.11/25/96), 684 So.2d 382. Specific intent need not be proven as a fact, but

may be inferred from the circumstances of the transaction and the actions of

defendant.” 69 So.3d at 592. We note that Defendant’s argument that he lacked

specific intent is inherently tied to his claim of self-defense, therefore we will

address the two simultaneously.

Defendant’s argument regarding the State’s alleged failure to prove specific

intent is based upon his assertion that:

While specific intent can be inferred from the circumstances, the
circumstances of what occurred that night are not clear. Causation in
the form of a single blow from [Defendant] as [the victim] lunges is not
proof of the necessary state of mind to support a conviction of
aggravated second degree battery.

Likewise, Defendant’s claim of self-defense hinges on his own testimony that

his mother attacked him with a table leg and a knife. Unfortunately, the only two

witnesses to the incident that occurred on June 16, 2017, were Defendant and his

mother, both of whom have histories of mental illness and claimed to have trouble

remembering the incident. Nonetheless, they provided starkly different stories about

what happened. Ms. Finley testified she was in her room playing scratch-offs,

walked down the hallway to grab her keys, then woke up with her wig knocked off

and serious injuries to the back of her head and her eye. As noted in his interview

with Captain Spell, Defendant claimed his mother attacked him and he pushed her

away with his guitar. Presented with these two versions of the event, the jury clearly
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found Ms. Finley to be the more credible witness, thus finding specific intent and

rejecting Defendant’s self-defense claim.

A victim’s or witness’s testimony alone is usually sufficient to support
the verdict, as appellate courts will not second-guess the credibility
determinations of the fact finder beyond the constitutional standard of
sufficiency. State v. Davis, 02-1043, p. 3 (La.6/27/03); 848 So.2d 557,
559. In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the fact
finder, is sufficient support for a requisite factual conclusion. State v.
Robinson, 02-1869, p. 16 (La. 4/14/04); 874 So.2d 66, 79.

State v. Dorsey, 10-216, pp. 43-44 (La. 9/7/11), 74 So.3d 603, 634, cert. denied, 566

U.S. 930, 132 S.Ct. 1859 (2012).

The jury here was faced with two possible scenarios: either Defendant

attacked his mother when she was not looking or she attacked him with a pair of

weapons and he defended himself with an unfortunate, disastrous result. Ms.

Finley’s testimony has no internal contradiction or irreconcilable conflict with

physical evidence. Defendant points to the fact that a knife was found next to Ms.

Finley and the table leg was in her vicinity when she was found. However, this

circumstantial evidence can be reconciled with Ms. Finley’s testimony by virtue of

a very simple explanation which the State implied throughout trial: Defendant cut

himself, planted the knife and table leg, and then left the house. The presence of a

knife and a table leg do not invalidate the jury’s decision that Ms. Finley was the

more credible witness. As such, there is sufficient evidence under the Jackson 1

standard to find Defendant possessed specific intent and was not acting in self-

defense.

Defendant also contends he should have been found not guilty by reason of

insanity. Insanity, as an affirmative defense, is defined by La.R.S. 14:14: “If the

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Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, rehearing denied, 444 U.S. 890, 100
S.Ct. 195.
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circumstances indicate that because of a mental disease or mental defect the offender

was incapable of distinguishing between right and wrong with reference to the

conduct in question, the offender shall be exempt from criminal responsibility.” The

supreme court has previously noted that “[t]o be exempted from criminal

responsibility on the grounds of insanity, a defendant must persuade the jury that he

had a mental disease or defect which rendered him incapable of distinguishing right

from wrong with reference to the conduct in question.” State v. Parker, 416 So.2d

545, 551 (La.1982)(footnote omitted).

There is no question that Defendant had a mental disease or defect, as Dr.

Hayes, a court-appointed psychiatrist, diagnosed Defendant as having schizotypal

personality disorder. The burden, however, was upon Defendant to persuade the jury

said mental disease “rendered him incapable of distinguishing right from wrong.”

Id. Defendant presented no evidence to support his contention. Although Dr. Hayes

testified he could not rule out the possibility that Defendant may have been suffering

from psychotic thinking at the time of the event, he nonetheless offered the expert

opinion that Defendant knew right from wrong and was legally sane. Defendant

presented no evidence to contradict Dr. Hayes’s opinion. In his brief to this court,

Defendant simply notes he had a number of potential stressors occur prior to the

incident and concludes that he “suffers from a mental illness that prevented him from

distinguishing right from wrong on the night in question.” When viewed under the

Jackson standard, we find there is sufficient evidence for a rational juror to have

found Defendant was not insane at the time of the attack. Accordingly, this argument

lacks merit, and Defendant’s conviction is affirmed.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Defendant contends the trial court erred in

allowing him to represent himself at sentencing. According to Defendant, the trail
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court failed to inquire into whether Defendant understood the dangers and

disadvantages his decision entailed.

Pursuant to the Sixth Amendment of the United States
Constitution, a defendant has a right to counsel at every critical stage
of criminal proceedings, including a resentencing hearing. State v.
Dupas, 94–1264 (La.App. 3 Cir. 3/6/96), 670 So.2d 667. “Unless a
defendant has made a knowing and intelligent waiver of his right to
counsel, any sentence imposed in the absence of counsel is invalid and
must be set aside.” Id. at 669 (quoting State v. Flowers, 598 So.2d
1144, 1146 (La.App. 1 Cir.1992)). In determining whether a defendant
has knowingly and intelligently waived the right to counsel, a trial court
must conduct “a meaningful inquiry” with the defendant regarding the
waiver and must advise the defendant “of the dangers and
disadvantages of self-representation.” State v. Hayes, 95–1170, pp. 4–
5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, 685–86. Alternatively, this
court has found that a defendant’s conduct can constitute an implied
waiver of the right to counsel. State v. Batiste, 96–526 (La.App. 3 Cir.
12/11/96), 687 So.2d 499, writ denied, 97–174 (La.6/30/97), 696 So.2d
1003; State v. Mitchell, 580 So.2d 1006 (La.App. 3 Cir.1991), writ
denied, 613 So.2d 969 (La.1993). Such conduct includes dilatory
tactics by a defendant, for example, obtaining multiple continuances by
refusing to accept court-appointed counsel and failing to secure other
counsel. Id. Additionally, a criminal defendant is entitled to court-
appointed counsel at each stage of the proceedings if indigent and
facing charges punishable by imprisonment.

State v. Joseph, 14-1188, pp. 3-4 (La.App. 3 Cir. 5/6/15), 164 So.3d 389, 391.

The State contends that because Defendant had previously made a knowing

and intelligent waiver of his right to testify, he understood what a waiver was and

chose to waive his right to counsel. At sentencing, Defendant expressed

dissatisfaction with his court appointed attorney and demanded she be fired. The

following colloquy took place after counsel suggested the court should inquire

whether Defendant wished to represent himself:

THE COURT: Let the record reflect the same. Now, Mr. Gee, it’s
been suggested, that after discussions with your attorney who
represented you at trial, that you wish to make a motion to the Court
today as a pro se or in person litigant. How do you wish to proceed?

DEFENDANT: Yes. I’d like to represent myself.

THE COURT: Thank you. And this is for sentencing only.

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DEFENDANT: Yea. That’s all that’s left, right?

THE COURT: Well, I mean, you have the appellate process as
well. But what you’re telling the Court today, that you wish not to have
this attorney present with you to compel and/or make any arguments at
sentencing today.

DEFENDANT: Right.

THE COURT: Okay. And you wish to represent yourself --

DEFENDANT: Fire the attorney. Full capacity to represent myself
at this moment.

THE COURT: Okay. Thank you, Mr. Gee. Let the record reflect
the same. For sentencing purposes, the Court is going to release the
Public Defender, allow Mr. Gee to proceed at this time and for
sentencing as a pro se litigant.

Despite knowing Defendant suffered from schizotypal personality disorder

and hearing from Dr. Hayes that Defendant could suffer from delusional or paranoid

thinking episodes, the court made no inquiry into the reason for Defendant’s

dissatisfaction with his attorney, failed to explain to Defendant that he may be at a

disadvantage by not having his attorney represent him, and made no inquiry into his

current mental state. Defendant then proceeded to accuse his attorney of actively

sabotaging his case and accused the entire Calcasieu Parish justice system of

conspiring against and persecuting him.

The State contends Defendant’s emphatic statement that he wanted to

represent himself should be considered a valid waiver, despite the failure of the court

to make any inquiry into Defendant’s ability to understand the consequences of

dismissing his attorney at sentencing. The State relies upon State v. Harper, 381

So.2d 468 (La.1980), wherein the supreme court found that a defendant’s refusal to

accept the help of his court appointed counsel and decision to proceed pro se instead

constituted a waiver of his right to counsel. However, the Harper court expressly

stated “[a] defendant need not have the skill and knowledge of a lawyer in making

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his decision, but he must be aware of the dangers and disadvantages of self

representation.” 381 So.2d at 471.

In Harper, the defendant asserted prior to trial that he neither wanted the

attorney the court appointed to him nor to represent himself; instead, he repeatedly

requested that the court appoint the Civil Liberties Union to represent him. When

the defendant refused to obtain counsel on his own, the trial court gave him the

options of having court-appointed counsel represent him or representing himself pro

se. The defendant proclaimed he wanted neither and the trial court ultimately

proceeded to trial with the defendant representing himself. There appears to have

been no issue of mental competency or mental disease at play in Harper, and the

court addressed the issue of self-representation with the defendant multiple times

prior to trial.

Harper is inapplicable to the instant case. There was no prior discussion of

Defendant potentially dismissing his attorney and one of Defendant’s affirmative

defenses at trial was that he was insane due to his schizotypal personality disorder.

The trial court should have been aware of these issues and should have discussed the

dangers and disadvantages of proceeding pro se with Defendant before dismissing

his attorney and allowing him to represent himself. In light of Joseph, 164 So.3d

389, we vacate Defendant’s sentence and remand the case to the trial court for

resentencing.

ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR:

Defendant’s remaining assignments of error are related to the constitutionality

of his sentence, namely the failure of the trial court to state a sufficient basis for his

eight-year sentence and a claim the sentence was excessive in light of the facts and

circumstances of the case. Due to the sentence being vacated in the previous section,

these assignments of error are moot and need not be addressed.
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CONCLUSION:

Defendant’s conviction is affirmed. Defendant’s sentence is vacated, and the

case is remanded for resentencing in light of the trial court’s failure to determine

whether Defendant understood the repercussions of representing himself pro se and

its failure to render a determinate sentence. Upon remand, the trial court is instructed

to specify whether the sentence is to be served with or without hard labor.

CONVICTION AFFIRMED. SENTENCE VACATED AND
REMANDED FOR RESENTENCING.

This opinion is NOT DESIGNATED FOR PUBLICATION.

Uniform Rules—Courts of Appeal, Rule 2-16.3.

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