Opinion
2016 KA 1151
02-17-2017
STATE OF LOUISIANA v. JEFFERY VALENTINE
Katherine M. Franks Abita Springs, Louisiana Attorney for Defendant/Appellant, Jeffery Valentine Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Attorney for Plaintiff/Appellee, State of Louisiana
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Trial Court No. 560,938, Div. E The Honorable William J. Burris, Judge Presiding Katherine M. Franks
Abita Springs, Louisiana Attorney for Defendant/Appellant,
Jeffery Valentine Warren L. Montgomery
District Attorney Matthew Caplan
Assistant District Attorney
Covington, Louisiana Attorney for Plaintiff/Appellee,
State of Louisiana BEFORE: PETTIGREW, McDONALD, AND CALLOWAY, JJ. CALLOWAY, J.
Hon. Curtis Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
Defendant, Jeffery Valentine, was charged by bill of information with bank fraud, a violation of La. R.S. 14:71.1. He pled not guilty and, after a jury trial, was found guilty as charged. Defendant filed motions for new trial and postverdict judgment of acquittal, both of which the trial court denied. The state filed a habitual offender bill of information, alleging defendant to be a second-felony habitual offender. After a hearing, the trial court adjudicated defendant to be a second-felony habitual offender. Thereafter, the trial court imposed a habitual offender sentence of six years at hard labor for the bank fraud conviction. Defendant now appeals, alleging two assignments of error that raise issues with respect to his representation at trial. For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.
The alleged predicate conviction was a December 5, 2013 conviction for theft over $500.00 in Orleans Parish, docket number 489-702.
FACTS
On June 25, 2014, defendant entered the American Bank and Trust on North Causeway Boulevard in Mandeville, and attempted to cash a check made payable to him. Julie Madigan, the bank teller who assisted defendant, recognized the company name - Seco Group - upon whose account the check was to be drawn. Upon inspecting the instrument, Madigan began to suspect that the check was fraudulent. Madigan was familiar with checks issued by Seco Group, and she observed that the check presented by defendant differed in the typeface used to fill in the named payee. Madigan also noted that the signature on the check appeared to have been traced.
Because she believed the check to be fraudulent, Madigan made copies of the check and defendant's ID, and she consulted her manager, Eden Matthews. Matthews also inspected the check and suspected it was fraudulent. Matthews contacted Paige Chambers, the office manager at Seco Group. Chambers advised that no check had been issued to defendant. Chambers inspected her records and determined that the check number on the check presented by defendant matched a real check that had been issued by Seco Group to Richerand Asset Management. Madigan and Matthews returned to the front of the bank to advise defendant that the check would not be cashed. They returned his ID to defendant, but kept the check and contacted the police.
Mandeville Police Sergeant Terry Guillory responded to the bank, but by the time he arrived defendant had already left the premises. Sergeant Guillory collected copies of surveillance videos that were played at trial for the jury. Sergeant Guillory also procured a warrant for defendant's arrest, but another officer ultimately took defendant into custody. Sergeant Guillory testified at trial that there was a second, similar incident that occurred at the same bank on the same date. Defendant was not involved in that incident, and arrests were made on other individuals involved in that check-cashing scheme.
Defendant did not testify at trial or call any witnesses to testify on his behalf. During a pretrial proceeding in which he argued his desire to represent himself, defendant stated that it was in his best interest to represent himself "[b]ecause I didn't come out there with any cash, understand, I went in the bank, I attempted to do that, I attempt - I understand that, but I didn't come out there with any cash." This statement was read to the jury at trial.
DENIAL OF RIGHT TO SELF-REPRESENTATION
In his first assignment of error, defendant argues that the trial court erred in denying him the right to represent himself at trial. Defendant contends that he made a clear and unequivocal request to represent himself, which the trial court then disregarded upon a finding that defendant was competent to stand trial, but not to represent himself.
An accused has a constitutional right to the assistance of counsel at every stage of criminal proceedings. La. Const. art. I, § 13; State v. Flowers, 598 So.2d 1144, 1146 (La. App. 1st Cir. 1992). The federal constitution grants an accused the right of self-representation. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). An accused has the right to choose between the right to counsel and the right to self-representation. State v. Bridgewater, 2000-1529 (La. 1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). A defendant who exercises the right of self-representation must knowingly and intelligently waive the right to counsel. State v. Penson, 630 So.2d 274, 277 (La. App. 1st Cir. 1993); see also State v. Dupre, 500 So.2d 873, 877 & 879-80 n.4 (La. App. 1st Cir. 1986), writ denied, 505 So.2d 55 (La. 1987). When a defendant requests the right to represent himself, the defendant's technical legal knowledge is not relevant in determining if he is knowingly exercising the right to defend himself. A trial judge confronted with an accused's unequivocal request to represent himself need determine only if the accused is competent to waive counsel and is "voluntarily exercising his informed free will." State v. Santos, 99-1897 (La. 9/15/00), 770 So.2d 319, 321 (per curiam) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. at 2541).
In Indiana v. Edwards, 554 U.S. 164, 177-78, 128 S.Ct. 2379, 2387-88, 171 L.Ed.2d 345 (2008), the United States Supreme Court held that the Constitution permits states to insist upon representation by counsel for defendants competent enough to stand trial, but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. In State v. Bell, 2009-0199 (La. 11/30/10), 53 So.3d 437, 446, cert. denied, 564 U.S. 1025, 131 S.Ct. 3035, 180 L.Ed.2d 856 (2011), the Louisiana Supreme Court recognized the holding in Edwards. However, the Court noted that Edwards did not impose on courts any new competency requirements or procedures to determine if a defendant has intelligently and voluntarily waived his right to counsel. Bell, 53 So.3d at 448. In a footnote, the Court stated that Louisiana does not impose a higher standard of competency for self-representation than it does for allowing a defendant to proceed to trial. See Bell, 53 So.3d at 446 n.12 (citing State v. Campbell, 2006-0286 (La. 5/21/08), 983 So.2d 810, 853 n.149. cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008)).
In the instant case, at an August 3, 2015 hearing, defendant first expressed on the record his desire to represent himself. Defendant's expressions were clear and unequivocal, with defendant informing the trial court numerous times that he wished to exercise his right to self-representation. After defendant's initial expression of this desire, the trial court engaged him in an extensive colloquy. The trial court questioned defendant regarding his background, including his educational history (high-school graduate), his experience in the criminal justice system (none, according to defendant), his occupation (most recently, a commercial truck driver), his family (married, with a deceased child), and his mental health (some history of treatment by a psychiatrist or psychologist). During this colloquy, when asked why he believed it to be in his best interest to represent himself, defendant replied with the incriminating statement later used at his trial. The trial court then cautioned defendant not to speak further about his case and further questioned defendant about whether he understood the pitfalls of self-representation, particularly the expertise in criminal matters and trial procedure held by the district attorney. Defendant replied that he understood the state's expertise, and he admitted that he lacked the same. Following this colloquy, the trial court asked defendant whether it was still his desire to represent himself. He answered affirmatively. At that time, the trial court stated:
Okay. At this time I'm going to allow him to proceed in proper person; however, I'm going to appoint Mr. Meissner [defendant's court-appointed attorney at the hearing] as standby counsel, so you will
be in the courtroom. And if Mr. Valentine would like to ask you any questions, you'd be available as standby counsel.The hearing concluded thereafter.
On August 5, 2015, the parties reconvened for what was to be the scheduled beginning of trial. The trial court again inquired of defendant whether he wished to represent himself, and defendant twice answered affirmatively. The trial court again cautioned defendant against doing so and brought up a plea deal offered by the state that the court thought defendant ought to consider more seriously. Defendant yet again replied that he wished to go to trial and to represent himself. Defendant expressed frustration that Mr. Meissner had failed to adequately communicate with him in the period leading up to trial. Mr. Meissner informed the court that he had been to the jail to visit defendant numerous times and informed him of the evidence in the case and the possible pleas offered to him. After Mr. Meissner's statement, the trial court asked to see counsel in chambers.
Following the unrecorded conference in chambers, the trial court went back on the record and stated:
Be seated. I reviewed Mr. Valentine's responses from my hearing again on Monday. Also, from what he has said today, I just don't feel comfortable in my determination that he is able to proceed without a mental examination.
So, therefore, I'm going to, by the Court's order, set a sanity commission to determine Mr. Valentine's ability to proceed in this matter. I'm going to file that today, but I'm ordering it now and I'm suspending the proceedings pending a finding, a determination by the doctors in this case.
Because defendant expressed dissatisfaction with Mr. Meissner's representation, the state inquired whether he would remain appointed in this matter. The trial court stated that it would contact the "Indigent Defense Office" to see if they could appoint someone else. Mr. Meissner expressed that he had no objection with the trial court's proposed action, nor did he have any objection to continuing his representation of defendant.
On October 28, 2015, the matter came before the court for a status hearing on defendant's competency evaluation. The trial court noted that the doctors who performed the competency evaluation - Drs. Salcedo and Thompson - disagreed about whether defendant was competent to assist or defend himself. The trial court also stated that all the "codefendants" have pled, thereby removing any potential conflict if defendant were to be represented by the public defender. The trial court then stated:
Presumably, the trial court was making reference to the other individuals who were arrested as part of the second attempt to defraud the American Bank and Trust. These individuals were not listed in the bill of information charging defendant with the instant offense. It appears from the record that these individuals might have at some point been represented by the public defender's office.
At this point, what I am going to do is I am going to find that he is not competent to represent himself. However, I am going to reset the competency to proceed for the next docket, if you want the doctors to testify or whether you want to stipulate to the reports at that time, whichever. But I find very clearly that he is not competent to represent himself. However, at this time, I am going to release Mr. Meissner from his appointment and appoint the Indigent Defense Office to represent him.
On November 30, 2015, defendant again appeared before the court with respect to the competency issue. He was represented at this hearing by Amanda Trosclair, who noted that her office was "just reappointed" to defendant's case. Ms. Trosclair stated, "At this point our office is going to be representing Mr. Valentine." She then stipulated to the contents of the doctors' reports on defendant's competency. The state joined in the stipulation.
Following these stipulations, the trial court stated:
Okay. At this time I'm going to find that Mr. Valentine is competent to proceed in this matter. I'll note that the Court had filed the sanity request, There was a split: Dr. Thompson indicated that Mr. Valentine did meet the Bennett criteria; Dr. Salcedo did not on his second report.
However, as I stated to counsel, the psychiatrist's opining that he was competent to proceed. And in view of the fact that he is no longer representing himself - I don't think he can represent himself, although Thompson said he could and Dr. Salcedo said he couldn't, but at this
point it's a moot issue, because you-all have enrolled as counsel of record.No objection was made by the state or defense at this point.
So at this time I'm going to order that these matters proceed to trial.
State v. Bennett, 345 So.2d 1129 (La. 1977) (on rehearing). --------
State v. Bennett, 345 So.2d 1129 (La. 1977) (on rehearing). --------
As the state points out in its brief, defendant did not make any further attempts at self-representation. During voir dire, he declined an invitation to participate in the exercise of cause and peremptory challenges. Defendant did not express on the record a desire to question any witnesses at trial, to make any objections, or to put forth any arguments.
On appeal, defendant argues that the trial court erred in determining that he was not competent to represent himself at trial, in light of his clear and unequivocal desire to do so. The state argues that the trial court properly found defendant competent to stand trial, but incompetent to represent himself. In the alternative, the state argues that defendant waived his right to self-representation by acquiescing to representation by Ms. Trosclair.
Defendant is correct that his initial request to represent himself was clear and unequivocal. Further, as the Louisiana Supreme Court stated in Bell, 53 So.3d at 446 n.12, Louisiana does not impose a greater standard for competency to represent oneself than it does for a defendant to proceed to trial. Therefore, the trial court would have been incorrect to impose counsel on defendant had he continued to express a desire to represent himself at trial.
As the state points out, however, defendant acquiesced in his representation by Ms. Trosclair, who apparently enrolled without his objection. In fact, Dr. Thompson's competency report stated that defendant expressed a willingness to go to trial with a different attorney from the public defender's office representing him. Even if a defendant requests to represent himself, the right to self-representation may be waived through the defendant's subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether. See Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982). The right of self-representation is more easily waived after its assertion than is the right to counsel. A waiver may be found if it reasonably appears to the court that the defendant has abandoned his initial request to represent himself. See Id.
In the instant case, defendant proceeded to trial represented by counsel not because the trial court imposed counsel upon him, but because defendant acquiesced to that representation. As a result, his constitutional right to self-representation was not impinged upon by the trial court.
This assignment of error is without merit.
CONFLICT OF INTEREST
In his remaining assignment of error, defendant contends that the trial court erred in appointing conflicted counsel to represent him, with counsel failing to disclose the conflict or to obtain a waiver, resulting in prejudice to the defense.
The basis of defendant's argument is the public defender's initial request to withdraw from representation of defendant because of his representation of a codefendant. This motion was filed by the public defender, John Lindner, II, on June 17, 2015, and granted by the trial court on the following day, resulting in the appointment of Mr. Meissner.
The subsequent proceedings unfolded as described above in the discussion of the first assignment of error. Mr. Meissner represented defendant for a time, until defendant expressed his desire to represent himself because of his dissatisfaction with Mr. Meissner's representation. At some point after the "codefendants" pled in their respective cases, the public defender's office was reappointed to represent defendant. Defendant acquiesced in this representation, lodging no objections to it. Similarly, Ms. Trosclair made no objection to her representation of defendant.
Because no parties objected to the re-representation of the defendant by the public defender's office, this matter was never presented to the trial court for its consideration. Therefore, there is no adverse ruling of the trial court for this Court to review. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. Code Crim. P. art. 841(A).
This assignment of error is unreviewable on appeal.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.