Opinion
NO. 2019-KA-0440
08-05-2020
STATE of Louisiana v. Nytilex JONES
Leon Cannizzaro, District Attorney, Donna Andrieu, Irena Zajickova, DISTRICT ATTORNEY's OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE/APPELLEE Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, Nytilex Jones #431888, Louisiana State Penitentiary, Angola, LA 70712, Barksdale Hortenstine, Jr., ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, 7th Floor, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLANT
Leon Cannizzaro, District Attorney, Donna Andrieu, Irena Zajickova, DISTRICT ATTORNEY's OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE/APPELLEE
Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, Nytilex Jones #431888, Louisiana State Penitentiary, Angola, LA 70712, Barksdale Hortenstine, Jr., ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, 7th Floor, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano )
Judge, Joy Cossich Lobrano The defendant, Nytilex Jones ("Defendant"), has appealed his conviction of second-degree murder and the mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. After reviewing the record and applicable law, and for the following reasons, we vacate Defendant's conviction and sentence and remand to the district court for a new trial.
PROCEDURAL HISTORY
Defendant was charged with the July 27, 2013 second-degree murder of Samuel Kelly ("Victim"), a violation of La. R.S. 14:30.1. Defendant appeared for arraignment and entered a plea of not guilty. Defendant filed a motion to suppress evidence, statement, and identification the same day. After Defendant fired and obtained new counsel on numerous occasions, the State requested a mental competency evaluation and hearing. At the hearing on June 18, 2015, Defendant was represented by counsel from the New Orleans Office of Public Defenders ("OPD"). Because Defendant had been uncooperative during the evaluation, the court ordered another competency evaluation. At the second competency hearing on August 13, 2015, during which Defendant was represented, the district court accepted the sanity commission's recommendation and found Defendant competent to proceed to trial. On April 25, 2016, Defendant filed a pro se motion for a change of venue.
The district court subsequently denied Defendant's motions for a change of venue, as well as previously filed motions to suppress evidence, identification, and statement. On September 26, 2016, Defendant filed a motion to recuse the district judge and the case was transferred from Section "C" to Section "K." On May 3, 2017, Defendant filed a motion to exclude the video surveillance evidence. Following a hearing to determine authenticity and reliability, the motion was denied on September 29, 2017.
On November 21, 2017, Defendant moved for another mental competency evaluation and hearing. On November 28, 2017, defense counsel filed a motion to withdraw after Defendant again refused to accept assistance from appointed counsel. Defense counsel also filed motions for a psychiatric exam and to present basis for competency hearing. The district court granted the motion to withdraw and entered a finding on the record that defendant had voluntarily waived his right to assistance of counsel. The court then proceeded with the third hearing on the renewed competency motion at which Defendant was unrepresented. Defendant's privately retained expert testified and recommended that another sanity commission be appointed. The district court accepted the expert's recommendation and ordered another competency evaluation. The district court held a competency hearing on December 19, 2017, and again found Defendant competent to proceed to trial. Defendant was unrepresented at this hearing.
Dr. Sarah DeLand believed Defendant suffered from paranoid delusions that would affect his ability to assist his attorney, specifically, that the surveillance video was reconstructed and the entire criminal justice system was rigged against him.
Defendant proceeded to trial on June 5, 2018, pro se , but the district court declared a mistrial following opening statements during which Defendant demanded an attorney and agreed to accept the assistance of appointed counsel. On September 18, 2018, the morning of Defendant's second trial, the court denied a renewed motion for a competency evaluation and began jury selection. Following a three-day trial during which Defendant was represented by counsel, the jury returned a unanimous verdict of guilty as charged. On October 9, 2018, Defendant filed motions for a new trial, post-verdict judgment of acquittal, arrest of judgment, and downward departure from the mandatory sentence, all of which were denied.
Defense counsel unsuccessfully moved for reconsideration of the competency issue at every subsequent proceeding, bench conferences or discussions in chambers.
On October 11, 2018, the district court sentenced Defendant to the mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence over Defendant's objection.
ERRORS PATENT
A review of the record reveals no errors patent.
ASSIGNMENTS OF ERROR
Defendant has assigned the six errors for our review. However, finding that the district court erred in allowing Defendant to represent himself during his final competency hearing, we pretermit discussion of the remaining assignments.
DISCUSSION
Defendant contends that reversal of his conviction is required because he was denied counsel at his final competency hearing at which the court erroneously found him competent to proceed to trial.
The State responds that the district court had already found Defendant competent to proceed to trial following two competency hearings at which Defendant was represented by appointed counsel, therefore, the failure to have counsel at any subsequent competency hearing would be harmless error.
Defendant was afforded four competency hearings. The first, requested by the State, was held on June 18, 2015, at which Defendant was represented by OPD. Defendant was examined by Drs. Richard Richoux and Raphael Salcedo. Dr. Richoux testified that he could not complete the examination because Defendant was deliberately uncooperative. Dr. Richoux recommended that Defendant be remanded to a mental facility where he could be continuously observed to provide a more thorough evaluation.
The first two hearings occurred while Defendant's case was pending in Section "C" and the second two were conducted after the case was transferred to Section "K."
Dr. Richoux also testified that Defendant stated he diagnosed himself as a paranoid schizophrenic, although he neither had been professionally diagnosed nor sought treatment for the condition (or any other mental condition). Dr. Salcedo concurred with Dr. Richoux's assessment and recommendation.
The court rejected the recommendation. Defendant then questioned the authenticity of the video surveillance footage the State had provided in discovery and moved for its suppression. The court explained that his concerns could not be addressed until his competency was determined. Defendant insisted he was competent and submitted to the court a written pro se motion to suppress the footage. The court ordered a second mental evaluation and competency hearing.
The district court explained that it was familiar with Defendant and believed that he was intelligent and simply malingering.
On July 9, 2015, Defendant appeared for his second competency hearing without counsel. The court continued the hearing until he obtained new counsel.
On August 13, 2015, Defendant appeared for the second competency hearing represented by counsel. Dr. Richoux testified that Defendant was cooperative during the examination. Defendant denied any history of psychiatric treatment and denied that he suffered "from any symptoms of possible mental illness." Dr. Richoux did not observe manifestation of any psychotic symptoms. Defendant presented nothing to suggest he was incapable of assisting his attorneys with his defense, or that he was unable to testify on his own behalf or make well-informed decisions. Dr. Richoux testified that Defendant satisfied the Bennett criteria and that he was competent to stand trial.
In State v. Bennett , 345 So.2d 1129, 1138 (La. 1977), the Supreme Court set forth factors to consider when determining if an accused's ability to assist in his defense.
Facts to consider in determining an accused's ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.
On cross-examination, Dr. Richoux explained that deliberate obstination and disrespect of authority may be symptomatic of a personality disorder, but did not determine competency to stand trial. Moreover, Dr. Richoux found nothing to support a diagnosis of a personality disorder, although he admitted that he had not consulted with any of Defendant's previous attorneys during his evaluation.
Dr. Salcedo concurred with Dr. Richoux's assessment and recommendation.
The court found Defendant competent to proceed, but cautioned him to stop firing his appointed attorneys or he would have to represent himself at trial; Defendant indicated that he understood the court's ultimatum. On September 26, 2016, the morning of trial, Defendant filed a motion to recuse the judge, which the court granted over the State's objection. Accordingly, the case was transferred from Section "C" to Section "K."
On November 21, 2017, Defendant demanded that the court remove his current counsel of record and refused any further representation by OPD. The court denied Defendant's motion and informed counsel that either he or someone from OPD, should prepare to represent Defendant at trial. The court set a hearing to determine counsel and competency for November 28, 2017.
On November 28, 2017, Defendant again stated he wanted no further representation by a public defender. After extensive questioning, the district court found that Defendant had voluntarily waived his right to have a lawyer represent him.
During the questioning, Defendant stated that he had never represented himself in a criminal case and had a sixth-grade education with difficulty in understanding and reading.
Following that exchange, the court granted OPD's motion to withdraw as counsel and proceeded with the third competency hearing. The court called Dr. DeLand to the stand and conducted the direct examination. Dr. DeLand testified that she had conducted a mental examination of Defendant at the request of his former counsel. She spoke with several of Defendant's prior attorneys, Defendant, his mother, and two sisters. Dr. DeLand believed Defendant suffered from paranoid delusions that would affect his ability to assist his attorney, specifically that the surveillance video was reconstructed, and that the entire criminal justice system was rigged against him. Furthermore, she did not think that Defendant's assertion that court officials had conspired to suppress the real surveillance video was "a reasonable and consistent defense strategy," and therefore concluded that Defendant was incapable of representing himself. Dr. DeLand recommended that yet another competency hearing be held.
Dr. DeLand testified that she was aware of the possibility that Defendant was malingering, however, she found it more likely that he suffered from a legitimate mental illness based on his receipt of a disability check since childhood, and his sisters’ account that "there are some other family members also with mental illness." She also testified that Defendant told her he heard voices and that he received personal messages through the television.
Defendant's fourth competency hearing took place on December 19, 2017, at which he was again unrepresented. After another mental evaluation by Drs. Richoux and Salcedo, Dr. Richoux indicated that Defendant had refused representation by OPD during the evaluation and at the hearing. Dr. Richoux testified that Defendant refused to participate in the evaluation and gave no verbal response to any questions posed. Nevertheless, Dr. Richoux reviewed his reports from previous evaluations, spoke to one of Defendant's former attorneys who relayed the concerns regarding the surveillance footage, and reviewed Dr. DeLand's report. He testified that Defendant's assertions regarding the video footage "taken at face value could be viewed as delusional," but may also be subject to alternative interpretations, specifically "a purposeful attempt to delay the legal proceedings," or simply "a massive form of denial," that may present as delusion. Accordingly, Dr. Richoux was not convinced that Defendant suffered from any identifiable mental illness and recommended that Defendant be found competent to proceed. Defendant refused to participate in the hearing or reply to the court's questions. The court found Defendant competent and denied all subsequent counseled defense motions to revisit the issue.
In order to decide this issue, we first look to the Louisiana Code of Criminal Procedure that includes a subsection (Title XXI) dedicated to insanity proceedings.
To determine a defendant's mental incapacity, we apply La. C.Cr.P. arts. 641, 642, 643, and 647. Pursuant to La. C.Cr.P. art. 641, "[m]ental 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." As a general matter, La. C.Cr.P art. 642 allows "[t]he defendant's mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court." The Article mandates that "[w]hen the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution ... until the defendant is found to have the mental capacity to proceed." Id. (Emphasis added.)
Next, Article 643 provides:
The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant's mental capacity to proceed. Prior to the ordering of any such mental examination, the court shall appoint counsel to represent the defendant if he has
not already retained counsel . (Emphasis added.)
Lastly, if a defendant's mental incapacity has been properly raised, the proceedings must continue under La. C.Cr.P. art. 647, which states:
The issue of the defendant's mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney . Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defendant's mental capacity to proceed may be introduced at the hearing by the defense and by the district attorney. (Emphasis added.)
Pursuant to Article 643, prior to ordering a mental examination of a defendant, the district court must appoint counsel to represent him/her. This is buttressed by Article 647, which requires a contradictory hearing during which the defense is entitled to question any witness testifying on the issue of a defendant's competency.
The proper legal standard for determining whether a criminal defendant is competent to stand trial was set forth in State v. Carmouche, 01-0405, pp. 29-30 (La. 5/14/02), 872 So.2d 1020, 1041 (subsequent history omitted):
A criminal defendant has a constitutional right not to be tried while legally incompetent. Medina v. California , 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353, 365-66 (1992)....A state must observe procedures adequate to protect a defendant's right not to be tried while incompetent, and its failure to do so deprives the defendant of his due process right to a fair trial. Id. ... In his dissent in Medina , Justice Blackmun expressed his opinion that due process does not simply forbid the state to try to convict a person who is incompetent, but it also "demands adequate anticipatory, protective procedures to minimize the risk that an incompetent person will be convicted." Medina , 505 U.S. at 458, 112 S.Ct. at 2584, 120 L.Ed.2d at 371 (1992) (Blackmun, J. dissenting) (emphasis in original); see also State v. Martin , 00-0489, p. 1 (La. 9/22/00), 769 So.2d 1168, 1169 (per curiam ); State v. Nomey , 613 So.2d 157, 161 (La. 1993).
Louisiana's statutory scheme for determining whether a defendant is mentally competent to stand trial jealously guards the defendant's right to a fair trial. State v. Anderson, 06-2987, p. 20 (La. 9/9/08), 996 So.2d 973, 992 (citing State v. Nomey , 613 So.2d 157, 161 (La. 1993) ). Where a bona fide question is raised regarding a defendant's capacity, the failure to observe procedures to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. State ex rel. Seals v. State, 00-2738, p. 6 (La. 10/25/02), 831 So.2d 828, 833 (citation omitted).
The Sixth Amendment requires the relinquishment of the right to counsel to be voluntary, knowing, and intelligent. It has long been held that if a defendant's competency is questioned, a defendant is unable to waive his right to counsel until deemed competent. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966) ; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938) (a criminal defendant may not be tried unless he is competent and he may not waive his right to counsel or plead guilty unless he does so competently and intelligently).
Several federal courts of appeals have held that a defendant may not waive the right to representation of counsel during competency proceedings. United States v. Frazier-El, 204 F.3d 553, 559 (4th Cir. 2000) ("The Supreme Court has made clear that the standard of competence for waiving counsel is identical to the standard of competence for standing trial. See Godinez [v. Moran ], 509 U.S. [389] at 396–97, 113 S.Ct. 2680 [125 L.Ed.2d 321 (1993) ]. Therefore, the district court's refusal to permit Frazier–El to represent himself until the issue of competency was determined was clearly justified."); United States v. Ross, 703 F.3d 856, 871 (6th Cir. 2012) ("[T]he Constitution requires a defendant to be represented by counsel at his own competency hearing, even if he has previously made a knowing and voluntary waiver of counsel."); United States v. Klat, 156 F.3d 1258, 1263 (D.C.Cir.1998) ("[W]here a defendant's competence to stand trial is reasonably in question, a court may not allow that defendant to waive her right to counsel and proceed pro se until the issue of competency has been resolved."); United States v. Purnett, 910 F.2d 51, 55 (2d Cir.1990) ("[T]he trial court cannot simultaneously question a defendant's mental competence to stand trial and at one and the same time be convinced that the defendant has knowingly and intelligently waived his right to counsel."); United States v. Kowalczyk , 805 F.3d 847, 858 (9th Cir. 2015) ("[A]s a person whose competence to stand trial was in question, Kowalczyk could not legally waive his right to counsel; thus he was entitled to be represented by an attorney at his competency hearing.)
The district court understood this at the June 18, 2015 competency hearing. Following an order that another competency evaluation and hearing take place, Defendant questioned the authenticity of the video surveillance footage provided in discovery and moved for its suppression. The court explained that his concerns could not be addressed until his competency was determined. On July 9, 2015, Defendant appeared for his second competency hearing without counsel. The district court continued the hearing until Defendant was appointed new counsel.
A district court's failure to follow statutory provisions in determining defendant's mental capacity to proceed violates a defendant's due process rights. State v. Cretian, 17-0777, p. 9 (La.App. 4 Cir. 1/24/18), 238 So.3d 473, 478. It is well-established that "[t]he failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial." State v. Nomey, 613 So.2d 157, 161 (La. 1993) ; Cretian, 17-0777, p. 9, 238 So.3d at 478.
We find that Defendant could not waive his right to counsel before his December 19, 2017, competency hearing. In other words, any waiver of counsel by Defendant before his fourth contradictory competency hearing was invalid.
In State ex rel. Seals v. State , 00-2738, p. 6 (La. 10/25/02), 831 So.2d 828, 833, the Supreme Court noted that where the district court failed to resolve the issue of a defendant's competency, nullification of the conviction and sentence may be appropriate, citing Nomey, 613 So.2d at 161-62. On the other hand, "[i]n certain instances, a nunc pro tunc hearing on the issue of competency is appropriate if a meaningful inquiry into the defendant's competency may still be had." Id. (citing State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832, opinion after remand, 98-1078 (La. 4/14/04), 874 So.2d 739, cert, granted, judgment vacated on other grounds, Snyder v. Louisiana, 545 U.S. 1137, 125 S.Ct. 2956, 162 L.Ed.2d 884 (2005) ). "A ‘meaningful’ determination is possible ‘where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant's condition at the time of the original ... proceedings.’ " State v. Camper, 08-0314, p. 17, n. 7 (La.App. 4 Cir. 10/1/08), 996 So.2d 571, 583 (quoting Snyder, 98-1078, p. 31, 750 So.2d at 855.) "If a retrospective determination cannot be made, or if it is determined that defendant was not competent at the time of trial, the defendant shall be entitled to a new trial." Id. Due to the violation of Defendant's constitutional right to counsel, we find remand inappropriate.
The United States Supreme Court has consistently held there should be a new trial if there has been some constitutional defect regarding the defendant's competency. See, e.g., Drope v. Missouri , 420 U.S. 162, 183, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (granting a new trial when trial court refused to conduct a hearing to determine the defendant's competence to stand trial); Pate , 383 U.S. at 386-87, 86 S.Ct. 836 (ordering a new trial for a defendant who did not receive an adequate competency hearing); Dusky v. United States , 362 U.S. 402, 403, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam) (vacating the conviction after holding that there were insufficient facts to support the finding that petitioner was competent to stand trial and recognizing the "difficulties of retrospectively determining the petitioner's competency as of more than a year ago.").
The right to assistance of counsel is "one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty." Johnson, supra , 304 U.S. at 462, 58 S.Ct. 1019. "The right to counsel in our adversarial system is sacrosanct." State v. Haider , 00-0231, p. 8 (La.App. 3 Cir. 10/11/00), 772 So.2d 189, 194. Similar to Haider , this Defendant's total lack of representation at his competency hearing violated his right to counsel. Id . That the district court previously found Defendant competent, with counsel present, is of no moment given that the court re-opened competency proceedings after hearing Dr. DeLand's testimony. Under these circumstances, the violation of Defendant's right to counsel requires us to vacate his conviction and sentence and remand the case for a new trial.
CONCLUSION
For the reasons set forth above, we vacate Defendant’ conviction and sentence and the matter is remanded to the district court for a new trial.
CONVICTION AND SENTENCE VACATED; REMANDED.
Dysart, J., Dissents with Reasons
DYSART, J., DISSENTS, WITH REASONS
I respectfully dissent from the majority opinion, as I find that the defendant, Nytilex Jones, manipulated and undermined the judicial process in an attempt to avoid conviction for a particularly heinous and cold-blooded murder.
The record indicates that both trial court judges who handled this matter were aware of the defendant's history and his previous attempts to avoid prosecution. For example, while this matter was pending in Division "C" of Criminal District Court, the defendant fired several court-appointed attorneys, prompting the State to request a competency evaluation and hearing. At the hearing, at which Mr. Jones was represented by counsel, the doctors reported that the defendant refused to answer simple questions. The doctors testified that this lack of cooperation prevented them from doing a proper evaluation, although one doctor opined that the defendant was competent. Out of an abundance of caution, the trial court ordered a second evaluation, although it rejected the doctors’ recommendation that the defendant be remanded to a psychiatric facility for further observation. The court stated that it believed the defendant was malingering. Mr. Jones then filed pro se a motion to suppress video evidence of the crime, questioning the authenticity of the evidence. The court explained to the defendant that it would not rule on his motion until his competency was determined.
A month later, a second hearing was scheduled, but Mr. Jones appeared without counsel having once again fired his court-appointed attorney. At the rescheduled hearing, where the defendant appeared with counsel, both doctors testified that the defendant was competent to proceed to trial. The court warned the defendant to stop firing his attorneys or he would have to represent himself. Mr. Jones acknowledged that he understood the warning.
The morning of trial, counsel for the defendant filed a motion to recuse the trial judge, which was granted. The case was re-allotted to Section "K."
Despite his acknowledgment of the warning from the Section "C" judge, on November 21, 2017, Mr. Jones (who had already fired two attorneys since the transfer), told the court he wished to fire his latest attorney and to represent himself. The court questioned Mr. Jones further about self-representation, to which he replied, "I ain't representing myself neither. I got nothing to say about nothing." The court continued to question Mr. Jones in an attempt to determine his true wishes. Mr. Jones said he wanted an attorney, but not someone from the public defender's office. The court explained that he had no choice as he did not have the means to pay an attorney, and told the current attorney to appear or to have someone else from the public defender's office appear on November 28, 2017, to determine counsel.
On November 28, Mr. Jones again refused to have the public defender represent him at a competency hearing. The court explained that Mr. Jones’ choices were to hire private counsel, accept a public defender or represent himself. Mr. Jones insisted that he would not represent himself because he was not a lawyer. He complained that all of the public defenders were complicit with the State in introducing an altered surveillance video. The court again explained that if Mr. Jones could not afford private counsel and refused a public defender, he was effectively giving up his right to counsel. The court ultimately declared that Mr. Jones had voluntarily waived his right to counsel, to which Mr. Jones replied he would attempt to hire one. The court allowed the latest public defender to withdraw, and proceeded to conduct a third competency hearing, receiving testimony from an expert hired by the public defender's office.
Mr. Jones insisted that he had a right to a pro bono attorney from a law school. The record reflects that Loyola Law School had been involved in the case early on, but was fired by Mr. Jones. The court stated for the record that Tulane Law School was contacted, but was unable to handle the case.
Dr. Sarah DeLand testified that in addition to examining the defendant, she had spoken with several of his prior attorneys, his mother and two sisters. Although she found him rational and informed as to the charges against him and the possible penalties, she nonetheless found him to suffer from paranoid delusions that would affect his ability to assist counsel. Dr. DeLand acknowledged the possibility that Mr. Jones was malingering, but based upon the fact that Mr. Jones received disability checks since his childhood, which she presumed were for mental health problems, she erred on the side of caution. The trial court accepted Dr. DeLand's recommendation that another competency commission be appointed.
Following the hearing, the trial court inquired of Mr. Jones’ mother if the family could afford an attorney. She stated it could not. The trial court then informed Mr. Jones that he would be representing himself at the next hearing, to which Mr. Jones replied he did not want to represent himself.
On December 19, 2017, Drs. Richoux and Salcedo reported to the court that they had conducted another evaluation of Mr. Jones, and that he had refused to allow assistance from a public defender at the examination, and had refused to answer any of the doctors’ questions. Dr. Richoux, who had now examined Mr. Jones several times, told the court that he reviewed his previous notes and Dr. DeLand's findings, and spoke to one of the former public defenders. He opined that Mr. Jones’ concerns about the surveillance camera footage being altered could be viewed as delusional, but admitted that it could also be "a purposeful attempt to delay legal proceeding," or simply "a massive form of denial." Dr. Richoux ultimately testified that in his opinion Mr. Jones did not suffer from any identifiable mental illness, and recommended that the defendant be considered competent to proceed to trial. The trial court accepted the recommendation, and denied all subsequent counseled defense motions for competency hearings.
A minute entry indicates that the trial court found Mr. Jones competent to stand trial. However, the transcript does not indicate that the court made any ruling.
Mr. Jones’ objection to surveillance video:
It is important to note that this writer viewed the video to which Mr. Jones objects, and reviewed Mr. Jones’ testimony at trial. Mr. Jones explained that he knew the victim and another man, Chris Wells, for twenty years, having grown up in the same neighborhood. He testified that at 3 a.m. on the morning of the shooting, he was outside his house smoking a cigar when he observed Wells’ vehicle nearby with two people inside. He did not call the police, because although he knew what "these people" were capable of, he still "goes around them."
Later that day, he traveled several miles to purchase a cigar at Jack's Meat Market, a neighborhood where Mr. Jones admitted the victim frequented. As he turned to leave the store, he saw Wells standing outside pointing a gun at the store, motioning to the victim. He knew these men had reputations for "selling drugs, robbing and killing." On cross-examination, he admitted that he could not see either occupant of the car that he observed outside his house earlier in the morning, but he did see the victim standing on the corner after the vehicle stopped. He further testified that despite his knowledge of the two men's reputation for violence, he did not feel in danger until the victim pointed a gun at him. That is when he wrestled the gun away from the victim and shot him. He said he threw the gun under a nearby house and left the scene in his own vehicle.
The video footage captured from two different cameras and vantage points, shows Mr. Jones enter Jack's Meat Market, purchase a cigar, exit the store, remove a black handgun from his waistband and put it in his pants pocket. Mr. Jones crosses the street and approaches the victim. He then pulls the gun from his pocket and chases the victim while shooting at him. After the victim falls to the ground, Mr. Jones stands over him and shoots him again in the head. There was no evidence introduced at any point in these proceedings to indicate that any of the video footage was altered.
Considering the unrefuted video evidence and Mr. Jones’ trial testimony, it is clear to this writer that Mr. Jones’ protestations about the use of the video and his feigned paranoia is his effort to prevent his prosecution for a cold-blooded, premeditated murder.
Right to counsel:
Although it is undisputed that the Sixth Amendment to the U.S. Constitution and Article I, § 13 of the Louisiana Constitution guarantee assistance of counsel in one's defense, and the appointment of counsel if indigent, State v. Garcia, 09-1578, p. 37 (La. 11/16/12), 108 So.3d 1, 28, that right is not absolute. A defendant does not have a right to have a particular attorney appointed to represent him. "An indigent's right to choose his counsel only extends so far as to allow the accused to retain counsel of his choice, if he can manage to do so, but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice." State v. Barker, 17-, 0469, p. 51 (La.App. 4 Cir. 5/30/18), ––– So.3d ––––, writ denied, 18-0968 (La. 3/18/19), 267 So.3d 85, reconsideration not considered, 18-0968 (La. 9/6/19), 278 So.3d 361 (citing State v. Leger , 05-0011, p. 43 (La. 7/10/06), 936 So.2d 108, 142 ); see also State v. Wille, 595 So.2d 1149, 1154 (La. 1992) ("An indigent defendant is entitled to the appointment of competent counsel, but is not entitled to choose or decline a particular attorney.").
In this case, Mr. Jones was incapable of hiring private counsel, therefore his right to counsel was limited to appointments by the court. Although he argues that his express refusal to represent himself (he did so on several occasions by filing pro se motions), should have prevented the court from finding he validly waived his right to counsel, the Louisiana Supreme Court has recognized "that a defendant could waive his right to the assistance of counsel by his actions even if his verbal protestations were to the contrary." State v. Harper , 381 So.2d 468, 471 (La. 1980).
In Harper, supra, the defendant filed numerous pro se motions and refused further representation by a public defendant, but instead demanded that an attorney from the American Civil Liberties Union be appointed. The trial court explained that the defendant could either accept his appointed counsel or hire private counsel. After the defendant rejected both options, the court proceeded to trial with the unrepresented defendant. As in Harper, Mr. Jones argues that forcing him to proceed pro se deprived him of his Sixth Amendment right to counsel. Harper, supra at 469-70.
The Supreme Court framed the issue as "whether the trial court erred in presenting the defendant with a choice of accepting the assistance of appointed counsel or proceeding pro se , and then forcing him to go to trial after rejecting both alternatives. The Court reasoned:
In this case there can be no doubt that the defendant knew of his right to the assistance of court appointed counsel. Such appointed counsel did in fact assist the defendant in preliminary matters. Counsel was available to the defendant at trial and the court made it clear to the defendant that Mr. McConnell was present at trial in order to give him whatever assistance he requested. The defendant chose to forego that assistance. After a careful examination of the record we conclude that the defendant's decision was made with the knowledge that appointed counsel was readily available to him. The refusal of the defendant to accept the assistance of
appointed counsel was a knowing and voluntary waiver of his right to the assistance of counsel.
Id. at 471.
The Supreme Court ultimately held that "[i]n the absence of any sound reasons for disqualification of the appointed attorney ... the [trial] court had no duty to appoint another attorney to represent the defendant," and that "the defendant's refusal without good cause to proceed with able appointed counsel amounted to a waiver of his right to counsel," notwithstanding his express declination to represent himself. Id.
A defendant's failure to secure his own counsel and refusal to accept court-appointed counsel may result in an implied waiver of his right to counsel. See State v. Crawford, 520 So.2d 950, 952 (La. 1987). In Crawford, the defendant demanded removal of his first two public defenders and argued on appeal that the trial court erred in failing to appoint another attorney in the absence of a knowing and intelligent waiver of his right to counsel. Id. At 951-52. The Supreme Court noted the lack of sufficient colloquy between the court and the defendant regarding defendant's literacy, competency, understanding, and volition, and the dangers of self-representation, but stated, "the issue is not whether the defendant made a valid waiver. The issue is whether a defendant having had two attorneys appointed to represent him, is entitled to the appointment of a third attorney when he expresses his dissatisfaction with the second." Id. At 952. The Court stated that "[a]bsent a valid waiver, defendant was entitled to and did receive the assistance of appointed counsel," and, absent a showing of inadequacy or ineptness on the part of appointed counsel, the defendant was not entitled to another appointed attorney.
see also State v. Flanagan , 32,535, pp. 9-10 (La.App. 2 Cir. 10/29/99), 744 So.2d 718, 725 ("The question presented in the case sub judice is whether the trial judge erred in presenting Defendant with a choice of accepting the assistance of counsel, or proceeding pro se, and in requiring Defendant to proceed with the hearing on the habitual offender bill after he rejected both.")
In my opinion, the trial court in this matter sufficiently discharged its duty to provide Mr. Jones with representation pursuant to the Sixth Amendment by appointing a competent attorney(s) to represent him. The only reason Mr. Jones asserted for his dissatisfaction with his representation was that the attorneys disagreed with his theory that the surveillance video the State provided in discovery had been reconstructed. Absent any showing that the appointed attorney was incompetent or inept, the court was not obligated to appoint another attorney. See Barker, 17-0469, at p. 51, ––– So.3d at –––– ("[Defendant] then proceeded to create a conflict with every court-appointed attorney (by naming them in his lawsuit) until he received private pro bono counsel. We cannot and do not sanction such tactical maneuvers.")
The record abundantly confirms that both trial court judges determined that Mr. Jones’ refusal to accept counsel (and to some extent his issue with the surveillance video) constituted an attempt to delay the proceedings and obstruct the orderly administration of justice. It is also clear that the assistance of counsel was repeatedly offered and refused. Thus, considering the totality of the circumstances, I do not find that Mr. Jones was deprived of his constitutional right to assistance of counsel and his first trial, or at the third and fourth competency hearings. See State ex rel. Johnson v. Maggio , 449 So.2d 547, 549-50 (La. Ct. App. 1984), writ denied sub nom. State v. Johnson , 450 So.2d 354 (La. 1984) (finding a valid waiver of the right to counsel under the totality of the circumstances, when representation was offered and refused, and where the court found defendant's actions were an attempt to manipulate the proceedings).
Thus, for all of the above reasons, I find that the trial court did not deny Mr. Jones the right to counsel at either competency hearings or trial. Rather, Mr. Jones’ refusal to accept appointed counsel impliedly constituted a valid waiver of his right to counsel.
Accordingly, I dissent from the majority opinion.