Opinion
2016 KA 0132
09-16-2016
STATE OF LOUISIANA v. SAREEL POINDEXTER
Camille A. Morvant, II District Attorney and Joseph S. Soignet Shaun George Assistant District Attorneys Thibodaux, Louisiana Attorneys for Plaintiff/Appellee State of Louisiana Mary E. Roper Baton Rouge, Louisiana Attorney for Defendant/Appellant Sareel Poindexter Sareel Poindexter Allen Correctional Center Kinder, Louisiana Pro Se
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LAFOURCHE STATE OF LOUISIANA
DOCKET NUMBER 531,327, DIVISION "B" HONORABLE STEVEN M. MILLER, JUDGE Camille A. Morvant, II
District Attorney
and
Joseph S. Soignet
Shaun George
Assistant District Attorneys
Thibodaux, Louisiana Attorneys for Plaintiff/Appellee
State of Louisiana Mary E. Roper
Baton Rouge, Louisiana Attorney for Defendant/Appellant
Sareel Poindexter Sareel Poindexter
Allen Correctional Center
Kinder, Louisiana Pro Se BEFORE: PETTIGREW, MCDONALD, and DRAKE, JJ. McDONALD, J.
Defendant, Sareel Poindexter, was charged by bill of information with distribution of a schedule II controlled dangerous substance (cocaine), a violation of LSA-R.S. 40:967(A)(1). He pled not guilty. On August 14, 2015, three days prior to the scheduled start of defendant's trial, his appointed counsel was allowed to withdraw due to threats allegedly made to him by defendant. The trial court found that defendant had forfeited his right to counsel, appointed defendant to represent himself, and ordered the public defender's office to appoint standby counsel to assist defendant at trial. On Monday, August 17, 2015, standby counsel appeared in court with defendant, apparently unaware of the trial court's instruction that he was to have met with defendant over the previous weekend. Defendant's trial began the following day, with standby counsel acting as defendant's representative throughout each phase of trial. Following a jury trial, defendant was found guilty as charged. He filed motions for new trial and post-verdict judgment of acquittal, which the trial court denied. The trial court sentenced defendant to twenty-five years imprisonment at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence. The trial court denied defendant's motion to reconsider sentence. Defendant now appeals, asserting three assignments of error. For the following reasons, we affirm defendant's conviction and sentence.
After the appeal was lodged, the trial court supplemented the record with correspondence that had been filed below but not included in the original appellate record. Thus, the defendant's pro se motion to supplement the appellate record is moot.
FACTS
On June 13, 2013, several officers working with the Lafourche Parish Drug Task Force (LPDTF) used a confidential informant (CI) to conduct a controlled narcotics purchase from defendant. LPDTF officers gave the CI $40 to make the purchase and outfitted her vehicle with audio and video recording devices. The CI contacted defendant and arranged to meet him near his home in Morristown. Defendant entered the CI's vehicle and sold her a single rock of crack cocaine for $20.00. The CI testified at trial, identifying defendant and describing the circumstances of the transaction. Using the audio/visual recording, a LPDTF officer who was familiar with defendant also identified him at trial. Defendant did not testify at trial.
RIGHT TO COUNSEL
Defendant's first and second assignments of error raise related issues and will be addressed together. In his first assignment of error, defendant argues the trial court abused its discretion in refusing to grant a continuance after allowing defendant's appointed counsel to withdraw three days prior to trial. In his second assignment of error, defendant argues the trial court erred in ruling that he forfeited his right to counsel and by then appointing defendant to represent himself.
The record reflects that defendant's trial was scheduled to begin on Monday, August 17, 2015. On August 14, 2015, the parties appeared in court for a hearing on a motion to continue and on defense counsel, Wilbert Billiot's, motion to withdraw. Mr. Billiot first argued the motion to continue, which was based on defendant's desire to subpoena certain witnesses. The trial court found the motion meritless and denied it.
Defendant does not explicitly challenge this ruling on appeal.
The trial court then took up the matter of defense counsel's motion to withdraw, which defendant did not oppose. Mr. Billiot testified in support of his motion. Mr. Billiot stated that he had several conversations with defendant on the day before the instant hearing. In the first conversation, defendant told Mr. Billiot that he wanted to file a motion to continue so that he could make arrangements to have certain witnesses appear at trial. However, defendant could not provide Mr. Billiot with the witnesses' names, addresses, or a general indication of their testimony - information that was required to support the motion to continue.
A second, brief conversation ended when Mr. Billiot had to ask defendant to call back at a later time. In a third conversation, defendant expressed concern that he had not been given information regarding the CI's identity in a timely manner. He also alleged that Mr. Billiot had colluded with the district attorney and the trial court to prevent disclosure of this information. Mr. Billiot explained that defendant had consented to waiving the date set for disclosure of this information in order for him to consider a plea offer. In this third conversation, defendant still did not provide Mr. Billiot with the information required to support the motion to continue.
At some point, defendant became irate and told Mr. Billiot, "If you don't make it so that I can get a continuance and subpoena these witnesses then I'm gonna f*** some people up" when I go into the courtroom. Mr. Billiot took this statement as a threat that was directed mainly toward him. Mr. Billiot then testified about what he perceived to be a prior threat defendant made to him. He described that there was previously an issue with defendant being transferred from federal to state custody. Defendant blamed Mr. Billiot for an apparent delay in his transfer, told Mr. Billiot he was not doing his job, and at the end of one conversation stated, "Mr. Billiot, don't make me have to send my brother." Mr. Billiot stated he believed this statement to be a threat that defendant would send his brother to "do some kind of harm to me," because defendant thought Mr. Billiot was not diligently representing him.
Mr. Billiot was unsure whether this threat was made during the third conversation or in a later phone call.
Mr. Billiot also described that he was also contacted by defendant's father on the day before the instant hearing. According to Mr. Billiot, defendant's father accused him of being unprepared for trial. Mr. Billiot particularly feared the fact that defendant had passed his contact information along to an unincarcerated third party.
Mr. Billiot testified that he did not believe he could further communicate with defendant in a proper attorney-client manner. He feared that defendant had the resources to carry out any threats he made, and he believed these threats completely impeded his proper performance as defendant's attorney. Mr. Billiot stated that, despite any efforts made by the trial court to ensure his safety in court, he believed the danger posed by defendant's threats existed "anywhere[,] anytime."
In granting Mr. Billiot's motion to withdraw, the trial court found Mr. Billiot's concerns to be sincere and his testimony to be credible and truthful. The trial court also noted that defendant did not refute any of Mr. Billiot's allegations. However, the trial court stated that the granting of the motion to withdraw did not mean defendant should be appointed new counsel. The trial court found that defendant had manipulated the system in an effort to postpone the matter and to obstruct the orderly procedure of the courts. The trial court concluded, "Whether or not [defendant] wanted to represent himself, he has forfeited his right to have the public defender represent him."
Subsequently, the trial court allowed defendant to testify regarding his education, legal training, and ability to defend himself and act as his own attorney. Defendant stated that he had quit school in the seventh grade, had no legal training, and had never before represented himself in a legal proceeding. He had no financial ability to hire his own attorney. Defendant noted that he had no objection to the trial court appointing another attorney to represent him in these proceedings, but he would like the attorney to be able to familiarize himself with the case. Prior to this testimony, defendant was unequivocal that he wanted to be represented by counsel and did not want to represent himself.
Having heard defendant's testimony, the trial court ordered the public defender's office to provide a standby attorney to work with defendant, who was to represent himself. The trial court also explicitly ordered that this standby attorney meet with defendant over the weekend in order to prepare for trial on Monday, August 17, 2015.
Defendant appeared in court again on Monday, August 17, 2015. At that time, the appointed standby counsel, Craig Stewart, appeared and apologized for not "being in proper court attire." Mr. Stewart was apparently unaware that trial was scheduled to begin on this date or that he would actually appear before the court. During this proceeding, Mr. Stewart represented defendant in arguing a pro se motion to continue based on the same claims Mr. Billiot had previously argued regarding defendant's desire to subpoena certain witnesses. The trial court again denied the motion to continue. The trial court did, however, direct that subpoenas be issued to defendant's prospective witnesses.
The trial court then addressed the matter of defendant's representation. The State argued strongly that defendant should be forced to represent himself, and that Mr. Stewart's role should be limited to standby only and not as "some type of semi participant in this proceeding." The trial court noted its decision that defendant had forfeited his right to counsel was not "an effort to submarine him" and specifically noted defendant's desire to be represented. Mr. Stewart informed the court that defendant wanted him to serve as counsel for trial and unequivocally did not want to represent himself.
The trial court ultimately stated that it would be clear to the jury that defendant was representing himself, with the assistance of standby counsel. However, the trial court did note that it had in mind "an expanded role" for standby counsel and further concerns could be clarified the following morning, prior to voir dire.
On the morning of August 18, 2015, the parties again discussed the representation issue, looking for clarification as to Mr. Stewart's role. The trial court stated that defendant would ultimately decide how to use Mr. Stewart, and the court would not stymy Mr. Stewart if he was going to handle certain aspects of the case. The court did explain that it would be an "all in or all out thing when it comes to individual parts of the case," meaning that either defendant or Mr. Stewart could handle a particular witness or argument, but they would not both be allowed to question a particular witness or present a certain argument. Ultimately, Mr. Stewart handled all aspects of defendant's trial, from voir dire through closing arguments, with no attempt by defendant to represent himself. On at least two occasions, defendant was asked to - and did - confirm his satisfaction with Mr. Stewart's representation. Mr. Stewart also represented defendant at his post-trial motion and sentencing hearings.
In his first assignment of error, defendant argues the trial court abused its discretion in refusing to grant a continuance after his first attorney was allowed to withdraw. In his second assignment of error, defendant argues the trial court erred in finding that he forfeited his right to counsel and in ordering him to represent himself. These issues are better addressed in reverse order.
The right to counsel cannot be manipulated to obstruct the orderly procedure of the courts and cannot be used to interfere with the fair administration of justice. State v. Seiss, 428 So.2d 444, 447 (La. 1983). While the United States and the Louisiana Constitutions guarantee the right to counsel of choice in a criminal proceeding, there is no constitutional right to make a new choice on the date a trial is scheduled to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. State v. Leggett, 363 So.2d 434, 436 (La. 1978). The right to counsel of choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. State v. Lee, 364 So.2d 1024, 1028 (La. 1978). Once the day of trial has arrived, the question of withdrawal of counsel rests largely within the trial court's discretion. Leggett, 363 So.2d at 436.
We recognize that defendant's first attorney was allowed to withdraw three days prior to trial, not on the day of trial. Nonetheless, the withdrawal was close enough to the beginning of trial to warrant scrutiny.
In allowing Mr. Billiot to withdraw, the trial court found Mr. Billiot's concerns to be sincere and his testimony to be credible. Defendant did not dispute Mr. Billiot's claims regarding defendant's alleged threats, and he did not oppose the motion to withdraw. Thus, the trial court was presented only with arguments and testimony in favor of allowing the withdrawal.
In U.S. v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995), the court concluded that a defendant who is abusive toward his attorney may forfeit his right to counsel at a hearing on a motion for new trial. Similar to the facts of this case, the defendant in McLeod had been verbally abusive toward his attorney during a telephone conversation and threatened to harm him. Though the court was concerned that the defendant had not been warned that his misbehavior might lead to pro se representation, it did recognize that he refused to take an oath at the hearing held on the motion to withdraw, so he was not allowed to testify. Id. at 325-26. At least one other federal court has held similarly, where the withdrawing attorney alleged that the defendant threatened to kill him, and the defendant failed to refute the allegation. See U.S. v. Thompson, 335 F.3d 782, 785 (8th Cir. 2003), cert. denied, 540 U.S. 1134, 124 S.Ct. 1111, 157 L.Ed.2d 940 (2004) (finding the refusal to appoint substitute counsel did not constitutionally abridge defendant's right to be represented on appeal).
As in McLeod and Thompson, defendant here did not dispute the allegations that he had threatened Mr. Billiot. Therefore, on the record before us, we cannot say that the trial court erred or abused its discretion in finding that defendant forfeited his right to counsel and in allowing Mr. Billiot to withdraw. We do note that, unlike the defendants in McLeod and Thompson, defendant here was not forced to proceed pro se, but was instead appointed "standby" counsel in Mr. Stewart. Contrary to his label, Mr. Stewart participated ably and diligently in all aspects of defendant's trial. He exclusively questioned prospective jurors, made an opening statement, cross examined the State's witnesses, and presented a closing argument. Therefore, defendant's self-representation was in name only. The record reflects that the actual effect of Mr. Stewart's appointment was a substitution of counsel (i.e., Mr. Stewart stepped fully into Mr. Billiot's previous role). Defendant took no actions that could be construed in the nature of self-representation. As a result, defendant's second assignment of error is without merit.
In defendant's first assignment of error, he argues the trial court should have granted a continuance because the short notice to Mr. Stewart "hamstrung" his ability to present a defense. Defendant filed a written, pro se motion for continuance on August 17, 2015. The motion alleged two grounds for a continuance: 1) his desire to subpoena several witnesses to testify at trial; and 2) the fact that no attorney consulted with him after Mr. Billiot's withdrawal, as per the trial court's instruction. Mr. Stewart ultimately argued this motion on defendant's behalf after taking time to consult with him.
Louisiana Code of Criminal Procedure article 709(A) provides that a motion for a continuance based upon the absence of a witness shall state all of the following:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.
(3) Facts showing due diligence used in an effort to procure attendance of the witness.
Defendant's motion alleged that he had witnesses who were present when the CI called him and who would testify that the CI actually sold him clothes. He also alleged that he had witnesses who he would like to call regarding the CI's character.
The trial court found the arguments concerning witness availability to be similarly lacking as were the same arguments in the motion argued by Mr. Billiot. In particular, the trial court doubted the materiality of any of the witnesses' potential testimony and the due diligence exercised in attempting to procure their presence. He did not find the argument that two witnesses were needed to address the CI's character persuasive or relevant, or that defendant made any diligent efforts to procure these witnesses. Defendant's motion also alleged his brother and live-in girlfriend were present during the incident. A review of the video from the transaction indicated that no parties besides the CI and defendant were present and further investigation revealed that defendant's brother was incarcerated at the time of the incident. To the extent that defendant's live-in girlfriend might have been present when defendant received the CI's first phone call, the trial court noted that it would likely be simple to obtain her presence, but nothing had been shown about the efforts to procure her attendance. As a result, the trial court denied defendant's motion to continue as it alleged the absence of witnesses. The court did, however, allow for these witnesses to be subpoenaed. None of these potential witnesses were called at trial, but defendant confirmed prior to the defense resting that he had consulted with Mr. Stewart and decided not to present any evidence or to testify on his own behalf.
The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial court, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Strickland, 94-0025 (La. 11/1/96), 683 So.2d 218, 229; see LSA-C.Cr.P. art. 712. Whether refusal of a motion for continuance is justified depends on the circumstances of the case. Generally, the denial of a motion for continuance is not grounds for reversal absent a showing of specific prejudice. State v. Roy, 496 So.2d 583, 588 (La. App. 1st Cir. 1986), writ denied, 501 So.2d 228 (La. 1987).
Considering the facts and circumstances related to defendant's alleged witnesses, as well as the record as a whole, we are convinced that the trial court did not err or abuse its discretion in denying defendant's motion for a continuance. With respect to the absent witnesses, defendant did not make the requisite showing of materiality or diligence, as is required by LSA-C.Cr.P. art. 709. The requirements of LSA-C.Cr.P. art. 709 are strictly enforced by the courts. See State v. Shannon, 10-0580 (La. App. 5 Cir. 2/15/11), 61 So.3d 706, 716-17, writ denied, 11-0559 (La. 9/30/11), 71 So.3d 283; see also State v. Meyers, 95-0750 (La. App. 5 Cir. 11/26/96), 683 So.2d 1378, 1388-89, writs denied, 97- 0015 (La. 5/9/97), 693 So.2d 766, 98-2530 (La. 2/5/99), 737 So.2d 745, and 00-0995 (La. 12/8/00), 775 So.2d 1079 (finding no abuse of the trial court's discretion in denying the defendant's motion for a continuance on the basis of the alleged exculpatory testimony of absent witnesses, where the defendant failed to meet two of the three requirements of LSA-C.Cr.P. art. 709).
Furthermore, while defendant argued as an alternative basis for a continuance that Mr. Stewart did not meet with him over the weekend prior to trial, he has failed to show any specific prejudice resulting from this relative lack of pre-trial communication. There is nothing in the record that indicates a dereliction of Mr. Stewart's responsibilities, and the record is replete with circumstances and actions supporting exactly the opposite conclusion. The trial court had already ruled that defendant's case was going to proceed to trial because he had forfeited his right to counsel. Notwithstanding the absence of a pre-trial meeting between the two, defendant's representation was undoubtedly stronger with Mr. Stewart acting in all capacities as his trial counsel. As a result, defendant has failed to show that the trial court erred or abused its discretion in denying the motion for a continuance on this basis. Defendant's first assignment of error is without merit.
EXCESSIVE SENTENCE
In his final assignment of error, defendant argues that his sentence is unconstitutionally excessive. He contends that the trial court failed to consider all of the relevant circumstances, particularly his personal history and the relatively small amount of crack cocaine involved, in imposing the sentence of twenty-five years at hard labor, with the first two years to be served without the benefit of parole, probation, or suspension of sentence.
The Louisiana Constitution, Article I, Section 20, prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Hurst, 99-2868 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).
The trial court must consider the factors set forth in LSA-C.Cr.P. art. 894.1 when imposing sentence. While the trial court need not recite the entire checklist of LSA-C.Cr.P. art. 894.1, the record must reflect that the trial court adequately considered the criteria. State v. Brown, 02-2231 (La. App. 1 Cir. 5/9/03), 849 So.2d 566, 569.
Whoever is convicted of distribution of cocaine shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without parole, probation, or suspension of sentence. See LSA-R.S. 40:967(B)(4)(b).
The statute also authorizes, but does not require, the imposition of a fine, but no fine was imposed in this case.
Defendant contends that the trial court did not consider his personal history or the relatively small amount of cocaine at issue in sentencing him. At the sentencing hearing, the trial court recited defendant's criminal history. The trial court noted that defendant had felony convictions ranging back to 1993 for offenses including: possession with intent to distribute cocaine, possession of cocaine, false representation of a controlled dangerous substance, possession of a firearm by a convicted felon (federal), and resisting arrest with force or violence. The trial court also noted defendant's multiple misdemeanor convictions, beginning in 1996, and found that defendant's rap sheet indicated he had a violent temperament and a difficulty with the police. The trial court offered defense counsel the opportunity to present mitigating evidence. In response, defense counsel noted that some of defendant's convictions were over twenty years old, that defendant participated in the proceedings without disruption, and had presented a respectful disposition toward the court throughout.
The trial court then noted that defendant's prior instances of parole and probation often ended in revocation proceedings and that defendant was currently serving time on a federal offense. The trial court extensively relied upon the factors in LSA-C.Cr.P. art. 894.1 and found certain of them to be applicable to defendant (namely, LSA-C.Cr.P. art. 894.1(A) and (B)(2)-(3), (12), (15)). The trial court also noted that defendant's own pre-trial actions caused issues that impeded the orderly administration of justice.
Considering the record as a whole, we cannot say that the trial court erred or abused its discretion in imposing the sentence that it did. Defendant made no showing to the trial court that the sentence imposed is nothing more than a needless imposition of pain and suffering. While we recognize that defendant's instant offense involved the distribution of only a small amount of crack cocaine, his history of repeated criminality, particularly with respect to controlled dangerous substances, adequately supports the sentence imposed. This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.