Opinion
2022 KA 0096.
11-04-2022
STATE of Louisiana v. Christopher ABBOTT.
Warren LeDoux Montgomery , District Attorney, Matthew Caplan , Assistant District Attorney, Covington, Louisiana, Attorneys for Appellee, State of Louisiana. James Hoeffgen , Covington, Louisiana, Gwendolyn Brown , Baton Rouge, Louisiana, Attorneys for Defendant/Appellant, Christopher Abbott. BEFORE: McDONALD, McCLENDON, AND HOLDRIDGE, JJ.
Warren LeDoux Montgomery , District Attorney, Matthew Caplan , Assistant District Attorney, Covington, Louisiana, Attorneys for Appellee, State of Louisiana.
James Hoeffgen , Covington, Louisiana, Gwendolyn Brown , Baton Rouge, Louisiana, Attorneys for Defendant/Appellant, Christopher Abbott.
BEFORE: McDONALD, McCLENDON, AND HOLDRIDGE, JJ.
HOLDRIDGE, J.
The defendant, Christopher Abbott, was charged by bill of information with home invasion, a violation of La. R.S. 14:62.8. He pled not guilty and, following a jury trial, was found guilty of the responsive offense of attempted home invasion. See La. R.S. 14:27. The defendant filed a motion for new trial. Following a hearing on the matter, the motion was denied. The defendant was sentenced to six years imprisonment at hard labor. The defendant now appeals, designating four assignments of error. He asserts the trial court erred by: 1) denying the defense's request for the appointment of a sanity commission; 2) releasing a deputy from his subpoena before the trial was concluded, thereby denying the defense its right to compulsory process; 3) denying the defense's motion for mistrial; and 4) denying the defense's motion for new trial. We affirm the conviction and sentence.
The trial court also found the defendant guilty of the misdemeanor offense of unlawful communication, a violation of La. R.S. 14:285.
FACTS
The defendant and Taylor Barnhart dated on and off for about a year. Taylor lived on Forest Green Drive in Mandeville. Because the defendant had previously slept at Taylor's house without her parents' knowledge or permission, and because the defendant had been abusive toward Taylor, the defendant was not allowed in the Barnhart home and was told by Taylor's father, Michael Barnhart, to stop communicating with Taylor.
On the morning of December 19, 2020, Taylor had received threatening texts from the defendant. Taylor's parents, Michael and Tara Barnhart, who worked together, had left for work. Only Taylor, her younger sister, and her sister's friend were at the house.
The defendant called Taylor and told her he saw her parents go to work and that he was sitting outside in a vehicle. The defendant then started screaming for her to open the front door. Taylor called her mother, Tara, and asked that her parents return home. As Michael and Tara were making their way back home, Taylor went outside because she thought she heard the defendant drive away. Taylor then went back inside and locked the front door. Moments later, the defendant came through the double front doors. Testimonial and documentary evidence indicated that both doors had sustained damage. It was not clear if the defendant had pushed or kicked the doors open. The defendant entered the house and pushed Taylor to the ground. Taylor screamed and her sister came out of her room. Taylor got up, and she and the defendant moved toward the dining room. The defendant then pushed Taylor over the Barnharts' wire dog cage and the dining room table. By this time, Taylor's parents had made it back to their house. Michael went inside and saw that the defendant had Taylor pushed down under the dog cage. Michael grabbed the defendant, punched him, threw him on the ground, and held him down until the police arrived.
Trial testimony established that the house has "French doors," or two separate doors, where one door remains closed and the other door is used to enter and leave the house. The double-door design was such that one door remained fixed in place with bolts, and the other door opened and closed.
Deputy Justin Purcell, with the St. Tammany Parish Sheriff's Office, arrived on the scene first and arrested the defendant. The defendant did not testify at trial.
ASSIGNMENTS OF ERROR NUMBERS ONE AND FOUR
In assignments of error numbers one and four, the defendant argues, respectively, the trial court erred in denying his request for the appointment of a sanity commission, and the trial court erred in denying his motion for new trial.
On the day the trial was scheduled to begin, the defendant went to the emergency room at University Medical Center in New Orleans. The documented complaint was "altered mental status." The next day, prior to voir dire, defense counsel informed the trial court the defendant had been in the hospital and that, while he should arrive at court later that day, he might not be present for the start of voir dire. Defense counsel James Hoeffgen suggested that a person does not stay in the hospital for more than 24 hours unless there is "something seriously wrong." Mr. Hoeffgen added: "I think it is very possible that this both was something physical and had something to do with the fact that he is terrified of facing prison time in this case. But 1 do think he had a legitimate medical emergency." One of the prosecutors, Tiffany T. Dover, replied: "I think this is all a big act on behalf of defendant.... We have received no evidence from defense that Mr. Abbott was having any kind of psychiatric episode, or any EMS report, or attempt to get an EMS report or medical document." The trial court then stated:
The defendant's medical records were not available until after the trial.
Megan Doyle and John Linder also represented the defendant.
The other prosecutor was Amanda Gritten.
The Court is extremely skeptical about whether or not Mr. Abbott has experienced a bona fide medical emergency or any emergency for that matter. So, he is in the process of being picked up and will be transported over here. I don't know whether we will be able to get him here in time to bring a panel in here and start jury selection, but we will try to do that. And unless and until the Court has documentation and very compelling evidence that there was some medical emergency, we are not going to stray from that course.
When the parties returned following a court recess that afternoon, defense counsel, John Linder, informed the trial court that the defendant was present and that the defendant had told him he was brought to the hospital because of an "overdose attempt." Hoeffgen had informed Linder that he had never seen the defendant "this way." According to Linder, he told the defendant to put on his shirt, but the defendant only sat down and did not seem to understand what was going on. Accordingly, Linder suggested that "a competency motion or examination" was warranted. Dover noted the defendant had been under observation, but was "never formally admitted to the hospital." Dover added, "Both myself, Ms. Gritten and Mr. Hoeffgen all called University and we were told that he was in the E.R. all throughout yesterday and today."
The trial court noted that, while it had no medical documentation, it would question the defendant regarding his competency. Upon questioning, the defendant indicated he understood trial was to begin the prior day, but that he had been at the hospital. The defendant further indicated he understood the charges against him and the consequence of being acquitted or found guilty. He also indicated that he understood the trial process and acknowledged that he had participated with his attorney in that process.
In denying the motion for the appointment of a sanity commission, the trial court ruled as follows: Well, the Court has questioned Mr. Abbott regarding his understanding of these proceedings in line and in keeping with the jurisprudence that governs these circumstances where it dictates what a Court is required or obligated to do to determine whether or not reasonable grounds exist to suggest or believe that the defendant's mental capacity to proceed is in question.
The Court finds that under these circumstances and based on the defendant's appearance here in court, his demeanor, and his responses to those questions, there are no grounds to believe that he lacks the mental capacity to proceed, and the Court is further convinced that this is an attempt by the defendant and a contrived attempt to avoid the trial that he knew was coming beginning yesterday. And therefor[e] the Court is not going to, or the Court will deny defense's motion or application for sanity commission. The Court has done so based on the hearing or the questioning the Court just conducted of the defendant.
Defense counsel took writs and to this court and asked for a stay. The trial court denied the stay and set the return date for the following day. We granted a temporary stay. Several hours later, we lifted the stay and denied the defendant's writ. State v. Abbott, 2021-0606 (La. App. 1st Cir. 6/3/21), 2021 WL 2268826.
Following the first panel of voir dire, Hoeffgen again asked for the appointment of a sanity commission. Hoeffgen suggested to the trial court that he did not believe the defendant had an actual understanding of what was going on. In denying the motion, the trial court stated in pertinent part:
I have seen or heard nothing that would change my mind on that, and I would note that the Court had the opportunity to observe Mr. Abbott's demeanor, not just today but at the motion hearings last week, and the Court notes no difference in his demeanor or communicativeness or lack of communicativeness, if that's a word. So, for the reasons stated earlier, the Court does not have anything before it that would lead the Court to conclude that there is reasonable grounds to believe that his mental capacity to proceed in this matter is legitimately in question.
The next day at trial, prior to the second panel of voir dire, defense counsel, Doyle, noted for the record that she had contacted the Sanity Commission Coordinator and asked her to come to court to speak to the defendant to find out if there were any "reasonable grounds for competency." Doyle further noted that the trial court denied Doyle's request. In response, the trial court stated:
All right. And just so the record is clear, Ms. Johansen did appear in my office. We did have a discussion about that. Her representation to me was that based on the, at least the information that was provided to us by the defense, that Mr. Abbott was at the E.R. for a [psychiatric] evaluation. Ms. Johansen's position or opinion was that if that's the case if there was any grounds for him to have been PEC'd that would have occurred, and her understanding therefor[e] was that a psychiatric evaluation must have determined that there was not. So, she didn't think it was appropriate under the circumstances to evaluate or examine, or whatever she would do with Mr. Abbott. And also in light of the fact that the defense motion to appoint a
See La. R.S. 28:53(B).
sanity commission had already been denied.
The defendant argues in brief that the trial court should have granted his motion for the appointment of a sanity commission. He notes that he went to the emergency room confused, disoriented, and unable to answer questions or follow verbal commands. One of the doctors noted the defendant was experiencing altered mental status with hallucinations. The doctor suspected he had overdosed on antidepressants or was experiencing hallucinations due to marijuana use. The defendant was given Droperidol, a sedative. The defendant suggests doctors came to believe he was experiencing "substance induced mood/psychotic disorder." He was discharged the following morning about 11:00 a.m. About five hours later, his trial began. According to the defendant, defense counsel observed that he was "acting strangely" and that he seemed to be a completely "different person" than when counsel had previously met with him. The defendant asserts he was forced to stand trial when he was not competent to assist his counsel. The defendant filed a motion for new trial based on the trial court's refusal to appoint a sanity commission. Following a hearing on the matter, the motion was denied.
The defendant tested positive for cannabinoids.
The Fourteenth Amendment's Due Process Clause protects an individual's right not to proceed to trial while legally incompetent. See Medina v. California, 505 U.S. 437, 448-49, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353 (1992). Pursuant to La. Code Crim. P. art. 643, a court shall order a mental examination of a defendant and appoint a sanity commission when it "has reasonable ground to doubt the defendant's mental capacity to proceed." "Reasonable ground" refers "to information which, objectively considered, should reasonably raise a doubt about the defendant's competency and alert the court to the possibility that the defendant can neither understand the proceedings, appreciate the proceedings' significance, nor rationally aid his attorney in his defense." State v. Anderson, 2006-2987 (La. 9/9/08), 996 So.2d 973, 992, cert. denied, 556 U.S. 1165, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009). The trial court's decision regarding a defendant's competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case, and the gravity of the decision with which the defendant is faced. A judicial examination of a defendant's competency focuses primarily on whether a defendant understands the nature of the charge and can appreciate its seriousness. State v. Odenbaugh, 2010-0268 (La. 12/6/11), 82 So.3d 215, 228, cert. denied, 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012).
In the exercise of its discretion, the trial court may consider both lay and expert testimony when deciding whether reasonable grounds exist for evaluating a defendant's competency. An appellate court owes the trial court's determinations as to the defendant's competency great weight, and the trial court's ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. Odenbaugh, 82 So.3d at 228. The appointment of a sanity commission is not a perfunctory matter or a ministerial duty of the trial court, and is not guaranteed to every accused in every case. Id. Even the fact that a defendant's capacity to proceed is called into question by formal motion does not, for that reason alone, require an order for a mental examination. La. Code Crim. P. art. 643, Off'l Rev. Cmt. (a) ("The ordering of a mental examination as to the defendant's present capacity to proceed rests in the sound discretion of the court. It is not enough that the defense has filed a motion urging the defense, but there must be sufficient evidence to raise a reasonable doubt as to such capacity."). Id.
In declining to appoint a sanity commission, the trial court, in a written per curiam to this court, provided the following thorough, detailed, well-reasoned justification for its ruling:
The defendant, Christopher Abbott, was arrested by the St. Tammany Parish Sheriff's Office on December 19, 2020[,] for a violation of La. R.S. 14:62.8[,] Home Invasion[,] involving an incident in which he allegedly forced his way in to his girlfriend's home, where she resided with her parents. On December 29, 2020, the Honorable Judge Reginal [sic] Badeaux conducted a Gwen's Law Hearing, at which defendant was represented by counsel. The defendant did not raise the issue of competency at that hearing.
On January 15, 2021[,] the State filed a bill of information charging defendant with [a violation of La.] R.S. 14:62.8 Home Invasion. Discovery was timely conducted and on April 5, 2021[,] counsel for the defendant was notified by the State and the Court that this case was being set as a priority trial for on [sic] May 17, 2021. On April 28, 2021, the Court held a pre-trial conference, at which counsel for defendant moved to continue this matter. At that hearing, defense counsel did not raise the issue of defendant's competency or even raise an issue regarding defendant's mental health. The Court granted defendant's motion to continue, reset this case for trial on June 1, 2021, again notifying counsel for defendant that this case would be a priority trial on June 1, 2021.
On April 9, 2021, counsel for defendant filed a Motion to Determine Eligibility for representation of the public [defender]. Defense counsel did not raise the issue of defendant's competency or mental condition at that time.
On April 27, 2021, counsel for defendant filed a Motion and Order for a Preliminary Examination. Defendant did not raise the issue of competency or defendant's mental condition at that time.
On May 6, 2021, counsel for defendant filed a Motion to Suppress Statements. Counsel for defendant did not raise the issue of defendant's competency or mental condition at that time.
On May 12, 2021, counsel for defendant filed a Motion to Exclude 404(B) Propensity Evidence, and a Request for a Hearing. Counsel for defendant did not raise the issue of defendant's competency or mental condition at that time.
On May 26, 2021, the Court held a hearing on defendant's Motion and Order for a Preliminary Examination, Motion to Suppress Statements and Motion to Exclude 404(B) Propensity Evidence, and a Request for a Hearing. At that hearing, at which defendant was present and in which he participated, counsel for defendant did not raise the issue of defendant's competency or mental condition. Also at that hearing, the Court had the opportunity to visually observe the defendant's demeanor and ability to communicate with his attorney. At that time, it appeared clear to this Court that counsel for the defendant communicated with his client sufficiently to discuss the matters being heard, the plea offer that had been made, for the defendant to communicate his rejection of that offer, and for defense counsel to inform the Court that the defendant was rejecting that plea offer. The Court advised the defendant and counsel for defendant that his case was set for priority trial, and that the State had made arrangements to fly an indispensable witness in from South Dakota for the June 1, 2021 priority trial. Again, counsel for defendant did not raise the issue of defendant's competency or mental condition, nor did this Court observe any action or inaction which would be grounds for concern about defendant's competency or mental health condition.
On the morning of June 1, 2021, when this matter was set for priority trial the second time, counsel for defendant advised the Court that, based upon counsel's communication with defendant's mother, defendant would not be present because he had been taken by ambulance to the emergency room at UMC hospital. Counsel for defendant was not able to provide any documentation that defendant had been admitted to a hospital, or even any rational reason or explanation as to why.
At that time, the State informed the Court of the measures defendant had taken days before in an effort to delay and/or avoid the upcoming trial, which measures include the defendant's mother contacting the victim's family and the defendant attempting to retain new counsel.
Having no documentation that defendant was in fact hospitalized, on motion of the State, the Court issued an attachment for the defendant as a result of his failure to appear in court for his June 1, 2021 trial. On June 2, 2021[,] defendant was taken into custody on that attachment in New Orleans by NOPD, booked at Orleans Parish Prison, then transported back to St. Tammany Parish, processed at the St. Tammany Parish jail, and then brought to Court.
On June 2, 2021[,] defendant filed an Application for Hearing to Determine Defendant's Mental Condition. As noted herein, this was the first time defendant's competency or mental condition was ever raised. Given the history [of] defense counsel's communication and interaction with defendant, the history of pre-trial conferences and hearings, and the fact that this was the first time the issue of defendant's competency or mental health was raised, the Court was, to say the least, skeptical of the defendant's alleged hospitalization and sudden onset of lack of competency only on the morning of his trial. After questioning the defendant to ascertain his mental capacity and condition, this Court concluded that there were no reasonable grounds to doubt defendant's mental capacity to proceed or to appoint a sanity commission, and this Court denied defendant's motion. Defendant moved for a stay of these proceedings and noticed [his] intent to seek a supervisory writ. This Court denied the motion for a stay.
On June 3, 2021[,] defendant filed an Application for Supervisory Writs with the First Circuit Court of Appeal, requesting expedited consideration and a stay. The First Circuit granted a stay, ordered the State to file a response and invited this Court to file this per curiam.
Notwithstanding the highly suspicious and dubious circumstances under which defendant now asserts his mental condition for the first time, the Court took defendant's motion seriously and gave the defendant the benefit of doubt. In doing so, the Court was guided by the Louisiana Code of Criminal [P]rocedure and applicable jurisprudence governing the issue of the defendant's competency and mental capacity to proceed. Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. C.Cr.P. Art. 641. The Court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant's capacity to proceed ..." C.Cr.P. Art. 643 (emphasis added).
Thus, the Court was required to make a determination of whether or not there were reasonable grounds to doubt Mr. Abbott's capacity to proceed. The Court sought jurisprudential guidance on how to proceed with making that determination. Fortunately, this is not the first time this scenario has occurred. In very similar circumstances[,] the defendant in State v. Keys, 346 So.2d 169 (La. 1977), on the day of trial, raised the issue of defendant's competency to proceed. The trial judge conducted a hearing on defendant's capacity by questioning defendant outside the presence of the jury to determine whether defendant understood that he was on trial for simple burglary, what the consequences of acquittal or conviction would be, what the functions of the judge and the jury were, whether he understood plea bargaining, cross-examination of witnesses and what the function and operation of voir dire are. Id. The Louisiana Supreme Court affirmed the trial judge's denial of a sanity commission and held that:
... the trial judge acted properly in halting the regular proceedings and in conducting a hearing on the defendant's capacity. However, the fact that the defendant's capacity to proceed is called into question during trial does not, for that reason alone, require the trial judge to order a mental examination of the defendant.
Guided by the Supreme Court's decision in Keys, when Mr. Abbott's attorney raised the issue of his mental condition in their motion, this trial court immediately halted the proceedings and held a hearing. In that hearing, this Court asked Mr. Abbott the same questions the trial court asked in Keys. Based upon Mr. Abbott's responses, this trial court concluded Mr. Abbott was able to intelligently appropriately respond to those questions, and that Mr. Abbott demonstrated no reasonable grounds upon which this trial court could doubt his mental capacity to proceed.
Furthermore, after observing Mr. Abbott's demeanor and being in a position to judge his credibility, this trial court concluded Mr. Abbott was making what was an obvious and contrived attempt to act less than fully responsive at times. Yet at other times, when he believed it would be to his benefit, Mr. Abbott was fully responsive and even animated.
Similarly, in other reported cases, defendants sometimes feign lack of capacity in an effort to manipulate the system and to thwart the State's effort to bring them to trial. See State v. Burnette, 337 So.2d 1096 (La. 1976) and State v. Woolens, 2007 WL 437784 (La. App. 1 Cir.). In those cases, and others, on review appellate courts have found that the trial courts' denials of a motion to appoint sanity commission were not an abuse of discretion and defer to the trial courts' determinations of credibility. This trial court was further guided by those decisions when it made its decision in the instant case involving Mr. Abbott.
This Court's opinion regarding defendant's mental capacity to proceed is further bolstered and confirmed by information this Court learned after its ruling. First, this Court's bailiffs informed the Court Mr. Abbott was talkative and even "chatting it up" with bailiffs and another defendant being transported. This is in stark contrast to defendant's attempt to be sullen, quiet and barely communicative while in court on June 2. In addition, the State informed the Court that deputies at the jail would testify that Mr. Abbott's behavior demonstrated what appears to be an unfettered ability to communicate.
Secondly, the State provided the Court and counsel for Mr. Abbott with recorded telephone calls made by the defendant from the jail on June 2, 2021, after appearing in court and after this Court denied defendant's motion. In those calls to his mother, defendant is energetic and completely lucid. He proceeds to berate his mother for 15 minutes blaming his parents for putting him in this predicament in which he has made bad decisions. He exhibits no signs of lack of competency or a mental incapacity to proceed. He only exhibits the lack of the ability to accept responsibility for anything he has done and an inclination to manipulate the system.
For the foregoing reasons, this Court remains convinced that under the governing principles set forth in the Louisiana Code of Criminal Procedure and applicable jurisprudence cited herein, and under the facts of this case, Mr. Abbott has demonstrated no reasonable grounds on which this Court can doubt his mental capacity to proceed. Further, this Court did in fact hold a hearing in response to Mr. Abbott's "Application for Hearing to Determine Defendant's Mental Condition". Based on this Court's questioning of Mr. Abbott, this Court finds there are no reasonable grounds to proceed to appointing a sanity commission and declines doing so.
The trial court's observation, without the benefit of any medical records before it, that the defendant was malingering and/or attempting to delay trial through dilatory tactics, was borne out by the defendant's medical records, acquired posttrial. The medical records indicate that the morning after the defendant was taken to the emergency room, Dr. Michael Paul Dicharry evaluated the defendant. Dr. Dicharry noted the defendant said he took sleeping pills the prior morning. The doctor then wrote, in pertinent part:
He states that he was taking it because he was supposed to go to court yesterday for 8AM to have his hearing for a home invasion he states was committed in December of 2020. He states that he was initially in jail for the crime but was bonded out, but he knows his hearing will lead to his sentencing. He reports smoking cannabis often with last use yesterday....
Objectively he is no longer displaying any signs/symptoms of ongoing psychosis or mania....
Upon his discharge from the hospital, the Discharge Instructions noted: "Impression: Substance Induced Mood Disorder." The instructions further stated that the defendant was "MEDICALLY CLEARED FOR INCARCERATION."
Based on the foregoing, we find no abuse of discretion in the trial court's denial of the motion to appoint a sanity commission.
Regarding the defendant's motion for new trial hearing, Dr. Sara Deland, board certified in forensic psychiatry, was the sole witness. She testified on direct examination that she had reviewed the defendant's medical records and that, given that it was not clear whether the defendant could have still been under the influence of the toxic substance he had taken, "combined with [defense counsel's] experiences with him once he returned that you described, and his vague answers in court, I do think that it is possible that his mental status was impaired, that could have impacted his competency to proceed." The defendant argues in brief that he was entitled to a new trial because of "the distinct possibility that he was under the influence of medications and was suffering a mental health crisis which rendered him incompetent."
On cross-examination at the hearing, however, Dr. Deland testified that the following morning when the defendant was discharged that "he was definitely greatly improved." Dr. Deland also indicated that she had never met the defendant and had never evaluated him for competency either the week of trial or since then. The following colloquy between defense counsel and Dr. Deland then took place:
Q. But that was not a current diagnosis at the time that he was evaluated on June 1st and June 2nd?
A. No. And I would agree from my review of the medical records that his presentation appeared to be directly due to affects [sic] of some substance that he had ingested.
Q. And basically, Mr. Hoeffgen asked you about your conclusions, but you can't really make any conclusionary statements about the defendant's competency either way because you did not evaluate him that week yourself?
A. I did not. So, all I can say is that based upon the medical records, their description and my knowledge of the pharmacology of those substances, that it is quite possible that he was still under the affects [sic] of that medication which could have impacted his competency and that's, since I didn't evaluate him myself, that's really what I can say at this time.
In denying the motion for new trial, the trial court stated, in pertinent part:
As to the first basis for the defendant's argument in his motion for new trial, that being the very issue that this Court and counsel for the State and the defense have gone back and forth on adnauseum [sic], being Mr. Abbott's mental state and the circumstances under which he came to us for trial, after having listened to arguments of the defense and having carefully listened to the testimony of the defense expert[,] Dr. Deland, and having reviewed her report, this Court finds first of all that her testimony, both her testimony and her opinion expressed in her written report do not appear to be an opinion at all as to Mr. Abbott's mental state or competency at the time [of] her conclusion, if you want to call it, that he could have been incompetent is of no probative value in that inquiry. Certainly of no probative value to this Court under the circumstances where this Court went to great lengths to have a discussion with Mr. Abbott on the record to [gauge] his mental state, mental condition at the time.
The Court is also going to note that as the Court stated and noted when that issue was brought up at the trial, the Court has today had the opportunity again to observe Mr. Abbott's demeanor and it is exactly the same as it was on the dates of the trial. Exactly the same it was every time that he has appeared in this court. He is barely communicative with his attorneys. He seems disinterested in these proceedings and that's the way his demeanor has always been. So, the Court finds nothing has been put before this Court to change this Court's mind or upon which the Court would be persuaded to grant a motion for a new trial on that basis.
At the hearing, the defendant argued he was entitled to a new trial because "the ends of justice would be served...." Under La. Code Crim. P. art. 851(B)(5), a new trial shall be granted if the court is of the opinion that the ends of justice would be served although the defendant may not be entitled to a new trial as a matter of strict legal right. The grant or denial of a new trial pursuant to Article 851(B)(5) does not involve questions of fact. This ground for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. The trial court is vested with almost unlimited discretion and its decision should not be interfered with unless there has been a palpable abuse of that discretion. See State v. Dyson, 2016-1571 (La. App. 1st Cir. 6/2/17), 222 So.3d 220, 234-35, writ denied, 2017-1399 (La. 6/15/18), 257 So.3d 685.
We find no abuse of discretion in the trial court's denial of the motion for new trial. We agree with the trial court that Dr. Deland's finding that the defendant "could have" been incompetent was of little to no probative value. See State v. Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, 757-59, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999) (finding the trial court did not abuse its discretion in denying the request for a sanity commission where the doctor who interviewed the defendant suggested the defendant might not be able to assist in his defense, but also admitted the defendant seemed aware of his legal problems). It is also telling that the trial court found that even at the new trial hearing, the defendant's demeanor was "exactly the same" as it had been during trial and every other time the defendant had appeared before the trial court. Accordingly, the defendant has made no showing below or on appeal of abuse of discretion, injustice, or error of law. See Dyson, 222 So.3d at 235.
These assignments of error are without merit.
ASSIGNMENTS OF ERROR NUMBERS TWO. THREE. AND FOUR
In assignments of error numbers two, three, and four, the defendant argues, respectively, the trial court erred in denying his request for a subpoena; the trial court erred in denying his motion for mistrial; and the trial court erred in denying his motion for new trial based on the denial of his right to compulsory process.
These issues are all related to Deputy Purcell's testimony regarding the damage to the front door of Barnharts' house. At trial, Deputy Purcell testified he observed damage to the bottom of the right front door. He took pictures of the door and his body camera also recorded the damage. Sergeant Alex Dantagnan, with the St. Tammany Parish Sheriff's Office, was at the scene, and his body camera also recorded the visible damage to the door. Neither officer testified regarding specific damage to the door on the left.
The "right" door referenced the door on the right as entrance to the home was made and was also the door that the Barnharts primarily used.
At the time of trial, Deputy Purcell no longer worked in Louisiana and had flown in from South Dakota to testify. On the date of the offense, when Deputy Purcell arrived on the scene in Mandeville, his body camera revealed that both doors were opened, facing the inside of the house. Deputy Purcell testified that he observed damage to the lower part of the right door and that he took two pictures of the damage. On cross-examination, Deputy Purcell noted he did not take pictures of the left door; he indicated he would have taken pictures of that door if he had observed damage. At the conclusion of Deputy Purcell's questioning, Hoeffgen informed the trial court that he did not want the deputy to be released from his subpoena because he might need to recall him for impeachment purposes. The trial court and Dover explained to Hoeffgen that Deputy Purcell had flown in from out of state to testify and that his flight home was the next morning. Dover agreed to stipulate that every interaction Deputy Purcell had had with a witness was captured on his body camera, which the jury had seen. Hoeffgen refused the stipulation and, instead, asked the trial court to issue a subpoena for Deputy Purcell's presence at trial the next day. The trial court then allowed Dover to question Deputy Purcell regarding any and all contact with other witnesses. Deputy Purcell made clear in his testimony that all of his conversations with the victim and witnesses were captured on his video camera that he was wearing. Hoeffgen was allowed to re-cross the deputy on this issue, but for reasons not clear, asked the deputy about the location of a ceramic Santa piece that had been broken inside of the house during the defendant's entry.
The jury was dismissed, and the trial court informed Hoeffgen that he was not going to issue a subpoena to keep Deputy Purcell in Louisiana. The trial court further stated that, if Hoeffgen found it necessary to question the deputy again, they could have him testify by Zoom. The trial court explained that they had audio and video and the court was set up to do that. Following Hoeffgen's objection, the trial court noted in pertinent part:
At the time of trial, Purcell was working as a police officer in Sioux Falls, South Dakota.
I will add to that, the defense has known for quite some time that this witness was going to testify, that he was coming in from out of state for this specific purpose and the defense is also aware that he has been here since Tuesday when we were supposed to begin this trial, and he was supposed to leave earlier tonight. So, under those circumstances the Court is comfortable with its ruling and the Court is comfortable with his availability to testify by Zoom.
On the following day of the trial, Michael Barnhart testified that the left stationary door was held shut by dead bolts (or latches) at the top and bottom of the door. Michael stated that the bottom bolt had "broke out" and the top bolt was sheared completely off. After the incident involving the defendant, he could not close the doors properly. Tara Barnhart testified that there was no damage to the front door when they left the morning of the incident to go to work.
After the State rested its case, Dover and Hoeffgen stipulated that Deputy Purcell had been cross-examined extensively on the fact that he only took pictures of the damage that he observed on the front door. Hoeffgen nevertheless moved for a mistrial because Deputy Purcell had been released from his subpoena and was not present to testify further regarding that issue. According to Hoeffgen, the defendant was prejudiced because they did not have Deputy Purcell in person for the jury to judge his credibility. The trial court denied the motion for mistrial and informed Hoeffgen that he could have the deputy testify on Zoom. The trial court also reminded Hoeffgen that he could have paid to retain the presence of Deputy Purcell, but Hoeffgen declined. At the motion for new trial hearing, Hoeffgen argued essentially what was previously discussed; namely that on cross-examination, Deputy Purcell testified he did not see any damage to the door other than the crack at the bottom. Michael Barnhart testified, however, that there was damage to the locking mechanism on the stationary door. Thus, according to Hoeffgen, this called into question Deputy Purcell's credibility, and the defendant was prejudiced because the defense was not allowed to recall Deputy Purcell to the stand in its case-in-chief.
Hoeffgen worked for the Public Defender's Office. Dover, the prosecutor added the following, regarding the law on subpoenaing witnesses: "It says that the Public Defenders can request funding from the Court in order to acquire out of state witnesses ... that's why they can subpoena witnesses for free because there is a statute to do that, however that was not done."
In denying the motion for new trial, the trial court stated, in pertinent part:
[T]he next argument made by defense was that defense was denied the opportunity to subpoena the officer who testified at trial after that officer had testified in the State's case in chief, the Court does recall very vividly the extensive cross examination the defense made of that witness about what damage was observed to the door and various locations of the door, and on that issue certainly not a lack or denial of the defendant's right to confrontation as far as the compulsory process and the right to recall him as a witness. As the State pointed out at any time prior to trial or even during the trial the State could have asked for that witness to be subpoenaed. I'm sorry, the defense could have asked for that witness to be subpoenaed and defense did not do so until after the out-of-state [d]eputy had testified. The defense was well aware of the fact that he had been flown in from out-of-state to testify. Well aware of the fact that the State because of the delay in commencing the trial that occurred ... solely as a result of Mr. Abbott's conduct, that other special arrangements had to be made for that witness, and the defense was well aware of the fact that that witness had other engagements. Under those circumstances, particularly in light of the fact that defense had more than ample opportunity to cross examine and question him and did so, and in fact did so on the very topic that the defense is arguing they wish to further question that witness, the Court finds that argument unpersuasive and the Court will deny the motion for new trial....
Article I, Section 16 of the Louisiana Constitution grants the defendant the right "to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, [and] to present a defense[.]" The admission of testimonial hearsay statements violates the Sixth Amendment's Confrontation Clause unless the hearsay declarant is unavailable at trial and the defendant has previously had an opportunity to cross-examine the declarant about the subject of the hearsay statements. State v. Miner, 2017-1586 (La. 1/4/18), 232 So.3d 551, 553, citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354 at 1374, 158 L.Ed.2d 177 (2004).
Article I, Section 16 of the Louisiana Constitution provides the defendant with the right to compulsory process for obtaining witnesses in his favor. The right to compulsory process includes the right to demand subpoenas and the right to have them served. State v. Latin, 412 So.2d 1357, 1361 (La. 1982); State v. Scott, 2009-0202 (La. App. 1st Cir. 6/12/09), 2009 WL 1655705, *4, writ denied, 2009-1502 (La. 3/26/10), 29 So.3d 1247. This right, however, is predicated on the exercise of due diligence by the accused. State v. Hogan, 372 So.2d 1211, 1214 (La. 1979); State v. Priest, 2018-518 (La. App. 5th Cir. 2/6/19), 265 So.3d 993, 1003, writ denied, 2019-0418 (La. 5/20/19), 271 So.3d 201. To demonstrate error, the defendant must prove that the absent witness testimony would have been favorable to the defense as well as the possibility of a different result if the witness were to testily. State v. Duplessis, 2000-2122 (La. App. 4th Cir. 3/28/01), 785 So.2d 939, 947. Compulsory process violations are subject to a harmless error analysis. State v. Robinson, 2001-0273 (La. 5/17/02), 817 So.2d 1131, 1137.
We find no reason to disturb the trial court's ruling on the denial of the motion for new trial. The defendant clearly was not denied the right to confrontation. Hoeffgen thoroughly and effectively cross-examined Deputy Purcell on his assessment of the damage to the front door. We find further the defendant has not established any violation of his right to compulsory process. As noted by the trial court, Hoeffgen could have subpoenaed Deputy Purcell at any time prior to trial, but elected not to. Further, Hoeffgen could have questioned Deputy Purcell via Zoom, but elected not to. More importantly, however, the defendant has not demonstrated how any further questioning of Deputy Purcell would have been favorable to the defense. It is not clear from his testimony or body camera footage that Deputy Purcell even examined the left door, much less the top and bottom of the left door frame. Deputy Purcell indicated in a posttrial affidavit that he observed damage to the lower half of the door and did not recall observing any other damage; and that if he would have been recalled to the stand and asked specifically whether he observed damage to a locking mechanism at the top of the door, he would have testified that he did not observe any such damage.
At any rate, more testimony from Deputy Purcell would not have changed the outcome of the trial. While the defendant has gone to great pains to establish reasonable doubt that there was no forced entry into Taylor's home, forced entry is not an element of home invasion. The State was required to prove, regarding this element, only that there was an "unauthorized entering" of an inhabited dwelling. There is no requirement that entry be made by breaking or damaging the door in any way. See State v. Green, 2015-0308 (La. App. 1st Cir. 12/17/15), 2015 WL 9260586, *3, aff'd in part, amended in part, and remanded, 2016-0107 (La. 6/29/17), 225 So.3d 1033 (noting that proof of a locked door and a forced entry "are not elements" of the crime of home invasion); State v. Collier, 2013-189 (La. App. 3rd Cir. 10/9/13), 161 So.3d 653, 654-56, writ denied, 2013-2554 (La. 4/11/14), 137 So.3d 1213.
The evidence at trial clearly established the defendant had not been invited into the home and that his entry into the home was unauthorized. About seven months prior to the incident, Michael had texted the defendant: "The police just left my house pertaining to you driving my car and putting [your] hands on my daughter. I have added another camera and they have stepped up patrols on my street. Stay away from my house." The defendant responded, "Yes sir[.]" Michael had also contacted the defendant's father and asked him to keep the defendant away from his house. Taylor had also been told by her father that the defendant was forbidden from coming back on their property. On the day of the incident, Taylor testified that she woke up to 74 text messages from the defendant. Some of the texts from the defendant to Taylor, and submitted into evidence, stated: "Go kill yourself'; "Your [sic] never gonna be happy ever again as long as I'm alive so you might wanna try and end it before I make it to you"; "Because once I get my hands on you it's over"; "I'm gonna f---ing kill you!"; "Your [sic] dead bitch you hear me your f---ing dead"; "You deserve to get beat"; "You deserve to get raped[.]" Taylor did not respond to the texts.
Shortly after Taylor's parents left together for work, the defendant called Taylor and said he was waiting for her parents to leave and that he was sitting outside of her house. The defendant then began screaming for her to open the door. He then banged on the window and continued to scream. Taylor did not unlock the front door or tell the defendant he could come in. Instead, she called her mother, Tara, and asked her to come back home because the defendant was trying to break into the house. Her mother told her to get a knife and sit in her room. Taylor grabbed a knife from the kitchen and went to her room. Taylor thought she heard the defendant drive away, so she went outside. She saw him down the street. She went back inside and locked the door. When she turned around, the defendant came into the house. Taylor had stayed on her phone with her mother through the entire incident. It was at the time the defendant entered the house that, according to Tara's testimony, she heard a loud noise and then heard Taylor screaming. A friend of Taylor's sister who was also in the house at this time, recorded audio on her phone of the defendant's entry. The defendant can be heard shouting, raging at Taylor, while Taylor continues to scream.
The jury found the defendant guilty of attempted home invasion. But in any event, the foregoing evidence established the defendant was not invited and therefore made unauthorized entry into the Barnhart home on December 19, 2020. The defendant has made no showing that Deputy Purcell's testimony would be either favorable or result in a different outcome, let alone both; his assertion, thus, that he was deprived of his right to compulsory process is unfounded.
The trial court did not err or abuse its discretion in denying the request for a subpoena, the motion for mistrial, or the motion for new trial. Accordingly, these assignments of error are without merit.
For these reasons, we affirm defendant's conviction and sentence.