Opinion
2017 KA 1607
02-06-2019
STATE OF LOUISIANA v. CHAD JEROME MOORE
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, LA Attorneys for Plaintiff/Appellee State of Louisiana Lieu T. Vo Clark Appellate Attorney Mandeville, LA Attorney for Defendant/Appellant Chad Jerome Moore
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
No. 567484 The Honorable Reginald T. Badeaux, III, Judge Presiding Warren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, LA Attorneys for Plaintiff/Appellee
State of Louisiana Lieu T. Vo Clark
Appellate Attorney
Mandeville, LA Attorney for Defendant/Appellant
Chad Jerome Moore BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The defendant, Chad Jerome Moore, was charged by bill of information with one count of attempted aggravated rape, a violation of Louisiana Revised Statutes 14:42(A)(3) and 14:27 (count I), and one count of aggravated burglary, a violation of La. R.S. 14:60 (count II). At his arraignment, the defendant pled not guilty on both counts, but following a jury trial, was found guilty as charged. Motions for a new trial and post-verdict judgment of acquittal were filed by the defendant but denied by the trial court. On count I, the defendant was sentenced to imprisonment at hard labor for forty-nine and one-half years without benefit of probation, parole, or suspension of sentence. On count II, the defendant was sentenced to imprisonment at hard labor for thirty years to run concurrently with the sentence imposed on count I.
A habitual offender bill of information was filed by the State, alleging the defendant's status as a fourth-felony habitual offender. Following a hearing, the defendant was adjudicated a fourth-felony habitual offender. After vacating the previously imposed sentences, the trial court then sentenced the defendant to life imprisonment at hard labor without benefit of probation or suspension of sentence on count I and, on count II, life imprisonment at hard labor without benefit of probation or suspension of sentence, to run concurrently with the sentence imposed on count I. A motion to reconsider sentence was also filed and argued by the defendant, but subsequently denied by the trial court.
Predicate #1 was set forth as the defendant's September 15, 2008 conviction under 22nd Judicial District Court, Parish of St. Tammany, Docket No. 450447, of two counts of Simple Burglary of an Inhabited Dwelling and two counts of Attempted Simple Burglary of an Inhabited Dwelling. Predicate #2 was set forth as the defendant's September 15, 2008 conviction under 22nd Judicial District Court, Parish of St. Tammany, Docket No. 451258, of one count of Simple Burglary of an Inhabited Dwelling and one count of Attempted Simple Burglary of an Inhabited Dwelling. Predicate #3 was set forth as the defendant's September 15, 2008 conviction under 22nd Judicial District Court, Parish of St. Tammany, Docket No. 447520, of one count of Simple Burglary of an Inhabited Dwelling. Predicate #4 was set forth as the defendant's March 4, 2009 conviction under 22nd Judicial District Court, Parish of St. Tammany, Docket No. 458884, of one count of Felon in Possession of a Firearm.
These sentences are also without benefit of parole. See La. R.S. 15:301.1(A) & La. R.S. 15:529.1(A)(4)(a) (prior to amendment by 2017 La. Acts Nos. 257, § 1 & 282, § 1).
Thereafter, and following the trial court's granting of the defendant's motion for appeal, the defendant filed a motion to correct an illegal sentence, arguing the incorrect version of La. R.S. 15:529.1(A)(4) was relied upon by the trial court during his habitual offender sentencing hearing. Following oral arguments on the motion, the trial court, on the basis of the 2017 revised version of La. R.S. 15:529.1(A)(4)(a), re-sentenced the defendant to life imprisonment at hard labor without benefit of probation or suspension of sentence on both counts I and II, with the sentences to run concurrently, and the defendant was given credit for time served. At the hearing, the defendant expressly objected to the "excessiveness of the sentence."
Louisiana Code of Criminal Procedure article 916(3) provides that:
[t]he jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to ... [c]orrect an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
Review of these sentences is not before us at this time.
The defendant appeals, assigning error to the trial court's failure to replace an allegedly sleeping juror, to the denial of his motion to reconsider sentence, and to the excessiveness of his sentences. He does not challenge the sufficiency of the evidence presented at trial, nor his identity as the perpetrator of the offenses. Nevertheless, the State also raises issues relative to the defendant's mental capacity to proceed to trial. For the following reasons, we affirm the defendant's convictions and habitual offender adjudications and remand with instructions.
FACTS
On the morning of August 10, 2015, after taking her children to school, M.F. returned to her home and had a short conversation with her sister, who then left for work. A few minutes later, M.F. heard a noise and, thinking something fell in the kitchen, went to inspect. As she turned a corner, M.F. observed the defendant "smirk[ing]" and standing next to the kitchen table. She began to back away but, because of the layout of the home, could not run away or otherwise escape. As the defendant approached M.F., who was begging the defendant to leave, he grabbed her arm and took the cellphone she was holding. The defendant then instructed M.F. to go to her room, telling her that he was not going to hurt her, he would place the phone somewhere in the house, and he would then leave.
We reference the victim only by her initials. See La. R.S. 46:1844(W).
After a few minutes inside her room, M.F. looked down the hallway to see the defendant take off his gloves and place her cellphone on a nearby washing machine. The defendant then entered M.F.'s room, where she told him to "[t]ake what you want[,]" to which he replied, "[y]ou're what I want." As a struggle ensued between the two, the defendant ripped M.F.'s shirt open, and continued to tell her, "I want you[,]" and "[y]ou have to take your clothes off." While the defendant eventually placed his hand around M.F.'s neck, she was able to free herself by pushing him into a door. In response, the defendant "drop[ped] his pants with one click on [his] belt[,]" and continued to approach M.F. M.F. testified it was at this point, when the defendant dropped his pants, that she believed he wanted to rape her. The struggle between the two resumed with the defendant again grabbing M.F.'s neck and M.F. kicking the defendant, who eventually brandished a box cutter and began to swing the blade at her. As the defendant again was able to grab M.F.'s neck, she began to beat against the wall, screaming "Help, help help. He is raping me. I need help."
Eventually, a knock on the front door startled the defendant and, after giving him a kick to the neck, the defendant fell down and M.F. was able to leave the room, grab the defendant's gloves and her cellphone from the washing machine, and answer the door to two individuals who lived in her neighborhood and overheard the commotion. M.F. explained the situation, and the two individuals entered her home and located the defendant as "he was trying to pull up his pants." However, the defendant was able to leave M.F.'s residence and run down a nearby street. M.F. then called 911.
Captain Steven Gaudet of the St. Tammany Parish Sheriff's Office responded to the incident. Upon arriving to the scene, and after learning the defendant fled M.F.'s residence, Capt. Gaudet began to canvas the area for witnesses and evidence. Eventually, after speaking to the defendant's former employer, Capt. Gaudet received the defendant's cellphone number and, based on the exigency of the circumstances, contacted the St. Tammany Parish Sheriff's Office Communications Division, instructing it to relay the cellphone number to the telephone company in order to locate the GPS coordinates of the phone. Capt. Gaudet travelled to the location of the cellphone and, after receiving consent to enter from the occupant and the defendant's father, Capt. Gaudet located the defendant hiding inside a clothes dryer.
Robert Rosson, one of the individuals from M.F.'s neighborhood who responded to her screams for help, testified that while at the front door of M.F.'s house, he observed the defendant in the house, "scrunched over" and "pulling his pants up." Rosson observed that "[he] had like a knife o[f] some kind in his hand. Looked to me like a box cutter or something." A few days later, Rosson was presented a photographic lineup and identified the defendant as the individual in M.F.'s house on August 10, 2015. Likewise, Adam Mason, the second individual from M.F.'s neighborhood who responded to her, testified that when he was on the porch of M.F.'s home and the defendant came out, he recognized the defendant from high school. Also, Mason was presented with a photographic lineup a few days later and identified the defendant as the individual inside M.F.'s home on August 10, 2015.
MOTION FOR MISTRIAL
In his first assignment of error, the defendant contends that, because one of the jurors was allegedly asleep during portions of the trial, and as the trial court did not conduct an evidentiary hearing in this regard but otherwise denied his motion for mistrial, "his due process right to a fair trial with a jury of twelve persons who were qualified to determine [his] fate" was denied. As such, the defendant claims his conviction should be vacated and remanded for a new trial.
Louisiana Code of Criminal Procedure article 775 provides, in pertinent part, that "[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial[.]" A mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. State v. Friday, 2010-2309 (La. App. 1st Cir. 6/17/11), 73 So.3d 913, 933, writ denied, 2011-1456 (La. 4/20/12), 85 So.3d 1258. Determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed on appeal without abuse of that discretion. Id.
Louisiana Code of Criminal Procedure article 789(A) provides, in pertinent part, that "[t]he court may direct that not more than six jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties." Herein, while the defendant argues that "[d]ozing off or being unable to pay attention during the course of a trial is clearly an indication of being unable to perform the duties of a juror," Louisiana jurisprudence states otherwise.
In State v. Cass, 356 So.2d 396 (La. 1977), the Louisiana Supreme Court addressed the issue of a sleeping juror. During the first day of trial, the judge noticed that one of the jurors appeared to be asleep as his head was nodding and his eyes were closed. Id. at 397. After watching him for two to four minutes, the judge, believing that the juror was ill, summarily ordered the removal of the juror and replaced him with an alternate. Id. The defendant objected to the removal of the juror and asked for a mistrial, which was denied. Id. On appellate review, the Louisiana Supreme Court found removal of the juror under those circumstances constituted reversible error. Id. at 398. In so ruling, the Court stated as follows:
[A]pplying [Article 789], we determine that even if the juror in question did briefly doze off, such is not per se proof of inability to perform, or any character of disqualification. Thus, there would be no legal cause for removing him. Had the juror been shown to have been sleeping through a substantial part of the trial or had he been unable to stay awake despite warnings or efforts to arouse him, and had defendant and the state been afforded an opportunity to explore on the record the defendant's inability to perform on this account, we would be presented with a substantially different question for review.
Id.
Further, in State v. Johnson, 463 So.2d 620, 626 (La. App. 1st Cir. 1984), the defendant argued that the trial court erred in refusing to excuse two jurors who appeared to be sleeping during the reading of the victim's prior testimony. The trial court stated he noticed two jurors with their eyes closed but, after watching them closely, did not believe that either of the jurors were asleep. Id. As defense counsel did not request an opportunity to make, nor made, any showing that the jurors were actually asleep or unable to perform their duties, this court found no error in the trial court's refusal to remove the jurors. Id. at 627.
Additionally, in State v. King, 2011-767 (La. App. 5th Cir. 2/28/12), 88 So.3d 1147, 1156, writ denied, 2012-0660 (La. 9/14/12), 99 So.3d 35, the appellate court found no error in the trial court's refusal to remove a juror who appeared to be sleeping through the reading of the jury instructions. The trial court denied the defendant's request, noting it "watched the juror closely because her eyes were closed during the trial, but he did not believe she was sleeping and he felt that she was paying attention." Id. at 1155. Upon review, the appellate court held there was no indication the juror slept through a substantial part of the trial, and the defendant only made an objection during the reading of the jury instructions, which were sent back with the jurors during deliberations and could have been independently reread by the juror. Id. at 1156.
Herein, similar to King, following the reading of the jury instructions, defense counsel informed the trial court that he believed one juror was asleep "while [defense counsel] was closing for a significant portion of the time[,] . . . [and] may also have been sleeping during the jury instructions." He did not indicate, other than the closing argument and jury instructions, which portions of the trial the juror was allegedly asleep. As a result, due to the lack of the availability of alternate jurors, defense counsel moved for a mistrial. In response, the trial court stated that he "did notice on a couple of occasions, yes, he did have his eyes closed. I didn't think he was sleeping though." Believing the juror "was just concentrating real hard[,]" the trial court denied the defendant's motion for mistrial.
We find no error in the trial court's decision to not replace the particular juror. Even if the juror briefly dozed off, this would not be per se proof that he was unable to perform his duties, or that he should be disqualified, and thus, there would be no legal cause for removing him. See Cass, 356 So.2d at 397-98; see also King, supra. There is no evidence in the record to support the defendant's claim that the particular juror was actually asleep, and as correctly pointed out by the trial court, the juror had the opportunity to be brought back and have the jury instructions reread to him. Moreover, defense counsel did not identify which portions of the trial, other than the defense's closing arguments and the giving of jury instructions, the juror was allegedly asleep and did not make any objection at that time. Therefore, as the trial court did not err in denying the defendant's motion for mistrial or otherwise removing the juror, this assignment of error is without merit.
The State also noted that the juror raised his hand to comment on the court's statement that a juror had a medical appointment, which the court did not want the jury to use as a deadline in reaching the verdict. The juror stated that he changed the appointment, indicating that he was paying attention. Defense counsel responded that "[obviously] we are not saying he was [not] periodically alert."
DEFENDANT'S MENTAL CAPACITY
Following the trial court's ruling on the defendant's motion to correct an illegal sentence, the State filed a supplemental brief with this court addressing those issues, but it also discussed the defendant's mental capacity to proceed to trial, an issue not previously assigned as error or raised by the defendant or the State.
The defendant first raised the competency issue in an "Application for Hearing to Determine Defendant's Mental Condition," filed on April 29, 2016. In response, the trial court ordered a mental examination of the defendant by Dr. Michelle Garriga and Dr. Raphael Salcedo. At a hearing on August 8, 2016, the trial court stated that it had reviewed both Dr. Garriga's and Dr. Salcedo's reports and concluded the defendant was competent to stand trial.
Following the defendant's convictions, sentencing, and habitual offender adjudication and enhanced sentencing, the defendant filed an "Application for Hearing to Determine Defendant's Mental Condition," asserting he lacked the capacity to have a rational understanding of the proceedings. Specifically, the defendant stated he "has suffered from developmental disabilities, including very low cognitive functioning for which he has received SSI/Disability, for many years." Defense counsel further averred he "had difficulty communicating with the defendant throughout his trial and post-trial motions, and doubts his ability to both understand the legal proceedings instituted against him and to participate in his own defense."
In light of this motion, and before ruling on the defendant's motion to reconsider sentence, on February 16, 2017, the trial court ordered the proceeding stayed until the
defense retains an independent medical expert, namely Alicia Pellegrin, [Ph.D.], [to] examine the present mental condition of the defendant, and defendant's mental condition at the time of the alleged commission of the offenses(s), as well as during the trial in the above-captioned case and to report [her] findings to the Court within thirty days from the date thereof.However, at the hearing for both the competency motion and the defendant's motion to reconsider sentence on November 2, 2017, regarding the second "Application for Hearing to Determine Defendant's Mental Condition," defense counsel indicated that the defendant was withdrawing the competency motion, stating "[t]here were no additional findings made by the doctor or we never received a report." The State then commented, "And so for clarity of the record, the last finding by the doctors as well as the Court was, in fact, that [the defendant] was competent to proceed to trial, which we in fact did." The trial court responded, "So noted."
The State was referring to the trial court's ruling on the defendant's earlier "Application for Hearing to Determine Defendant's Mental Condition," filed on April 29, 2016, wherein he alleged the same bases for his incompetency as raised in the later motion.
In the State's supplemental brief, it argues:
the trial court found reasonable ground to doubt the defendant's mental capacity on February 16, 2017 (as reflected in the order signed by the court) but nevertheless permitted a number of steps in the
prosecution to occur thereafter - the withdrawal of the sanity commission, the hearing on the motion to reconsider sentence, and the later (re-)sentencing of the defendant. This was error.The State further argues that, quoting State v. Robinson, 2010-0924 (La. 12/17/10), 50 So.3d 156 (per curiam), this court should "remand the matter to the trial court to determine whether a meaningful inquiry can be had regarding defendant's competency[,]" and that "[i]f it is found that a meaningful retrospective competency hearing is possible," to order such a hearing.
As a general matter, La. Code Crim. P. art. 642 allows "[t]he defendant's mental incapacity to proceed [to] be raised at any time by the defense, the district attorney, or the court." The article additionally requires 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." Next, La. Code Crim. P. art. 643 provides, in pertinent part, "[t]he court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant's mental capacity to proceed." Last, if a defendant's mental incapacity has been properly raised, the proceedings can only continue after the court holds a contradictory hearing and decides the issue of the defendant's mental capacity to proceed. See La. Code Crim. P. art. 647; State ex rel. Seals v. State, 2000-2738 (La. 10/25/02), 831 So.2d 828, 832-33; see also State v. Jackson, 2016-1565 (La. App. 1st Cir. 10/12/17), 232 So.3d 628, 635, writ denied, 2017-1944 (La. 5/25/18), 243 So.3d 566. Further, the appellate court in State v. Carney, 25,518 (La. App. 2d Cir. 10/13/95), 663 So.2d 470, 473, stated that:
In State v. Fugler, 97-1936 (La. App. 1st Cir. 9/25/98), 721 So.2d 1, 15-16, this court stated:
The appointment of a lunacy commission is not a perfunctory matter or a ministerial duty of the trial court, nor is it guaranteed to every accused in every case. The fact that the defendant's capacity to proceed is called into question does not, for that reason alone, require the trial court to order a mental examination of the defendant; rather, he must have reasonable grounds to doubt the defendant's capacity. The ordering of a sanity commission to inquire into the defendant's present capacity to proceed rests in the sound discretion of the trial court.
[o]nce a motion to appoint a sanity commission has been made, it takes on a life of its own as nothing further can happen without resolving the issue of the defendant's mental capacity. An attorney independently waiving or withdrawing the motion is an insufficient resolution of the issue. The trial court, not the defense attorney, is mandated to determine the defendant's mental capacity to proceed and rule on the motion.
We agree with the State that the trial court erred in failing to formally determine whether the defendant was competent to proceed before considering and denying the defendant's motion to reconsider sentence, and before considering and granting the defendant's motion to correct an illegal sentence. The trial court's earlier determination of August 8, 2016, that the defendant was competent to stand trial did not negate the need to make another competency determination after the trial court granted the second competency motion on February 16, 2017. See State v. Carr, 629 So.2d 378 (La. 1993) (per curiam) (wherein the Louisiana Supreme Court granted the defendant's writ application, in part, to remand the case to the district court for the purpose of "entering a formal ruling as to the defendant's competency.")
However, because the issue of capacity may be clarified on remand, we find it unnecessary to set aside the convictions. See State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832, 855-56; State v. O'Brien, 2014-0899 (La. App. 1st Cir. 12/23/14), 168 So.3d 627, 632. We pretermit consideration of the assignments of error challenging the sentences, and we remand this matter to the trial court for the purpose of determining whether a nunc pro tunc hearing on the issue of competency may be possible. See Robinson, 50 So.3d at 156; Snyder, 750 So.2d at 854-55; O'Brien, 168 So.3d at 632. As urged by the State, State v. Robinson, 50 So.3d at 156, instructs this court to "remand the matter to the trial court to determine whether a meaningful inquiry can be had regarding defendant's competency[,]" and that "[i]f it is found that a meaningful retrospective competency hearing is possible," to order such a hearing. Defendant has already been evaluated by two psychologists to determine competency, and one report has been made a part of the record. Defendant offered his school records into evidence at the hearing on the motion to reconsider sentence. Those records indicate that defendant, shortly before his seventeenth birthday, had no more than a first or second grade level in reading comprehension, fluency, spelling, and written language, and he had a very low third grade level in math. Defendant was evaluated as having a specific learning disability with an emotional disturbance and a speech or language impairment. (Exhibit D1 from 11/21/17) Accordingly, we remand for a nunc pro tunc hearing on the issue of competency, if a meaningful inquiry into defendant's competency can still be had. See Robinson, 50 So.3d at 157; Snyder, 750 So.2d at 854-55; O'Brien, 168 So.3d at 632. The trial court is in the best position to determine whether it can make a retrospective determination of defendant's competency during his motion to reconsider sentence. Snyder, 750 So.2d at 855; O'Brien, 168 So.3d at 632-33. The determination of whether a trial court can hold a meaningful retrospective competency hearing is necessarily decided on a case-by-case basis. Id. The State bears the burden of showing the court that the tools of rational decision are available. Snyder, 750 So.2d at 855.
While the record indicates that Dr. Garriga's report was filed in the record under seal, that report is not in the record before this court. --------
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. Snyder, 750 So.2d at 855; O'Brien, 168 So.3d at 633. Additionally, when determining whether a meaningful hearing may be held, the trial court must look to the existence of contemporaneous medical evidence, the recollections of non-experts who had the opportunity to interact with the defendant during the relevant period, statements by the defendant in the trial transcript, and the existence of medical records. Snyder, 750 So.2d at 855.
If the trial court believes that it is still possible to determine the defendant's competency at the time of the hearings on the motion to reconsider sentence and the motion to correct illegal sentence, the trial court is directed to hold an evidentiary hearing. If the trial court concludes the defendant was competent, no new hearing on the motion to reconsider or motion to correct illegal sentence is required. If the defendant is found to have been incompetent at the time of sentencing or the motions to reconsider or correct an illegal sentence, or if the inquiry into competency is found to be impossible, the defendant is entitled to a new hearing on the motion to reconsider and the motion to correct illegal sentence. The defendant's right to appeal an adverse ruling concerning his competency or sentencing is reserved. See Snyder, 750 So.2d at 855-56 & 863; State v. Davis, 2011-0990 (La. App. 1st Cir. 2/10/12), 2012 WL 638492 (unpublished), writ denied, 2012-0597 (La. 6/15/12), 90 So.3d 1060.
For these reasons, the convictions and habitual offender adjudications are affirmed. We will remand this matter to the trial court for a determination of whether a nunc pro tunc competency hearing may be possible.
CONVICTIONS AND HABITUAL OFFENDER ADJUDICATIONS AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.