State v. Bartie

289 So.3d 1106

STATE of Louisiana

v.El Jerico Jermiah BARTIE

19-497

Court of Appeal of Louisiana, Third Circuit.

January 22, 2020

Annette Roach, Louisiana Appellate Project, P. O. Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT: El Jerico Jermiah Bartie

Honorable John F. DeRosier, District Attorney, 14th Judicial District Court, Parish of Calcasieu, Karen C. McLellan, Assistant District Attorney, Elizabeth B. Hollins, Assistant District Attorney, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR: State of Louisiana

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Jonathan W. Perry, Judges.

PERRY, Judge.

Defendant, El Jerico Jermiah Bartie, appeals the trial court's determination that he knowingly and intelligently waived his right to trial by jury. We vacate Defendant's convictions and sentences, and remand to the trial court.

FACTS AND PROCEDURAL HISTORY

The basic facts of this case were summarized in our earlier opinion in this matter, State v. Bartie 18-913 (La.App. 3 Cir. 5/1/19), 2019 WL 1929907 (unpublished opinion), as follows:

On July 24, 2014, Defendant, El Jerico Bartie, and his wife were in a hotel room in Sulphur, Louisiana when, acting on a tip as to Defendant's location, SWAT team members of local law enforcement attempted to serve an arrest warrant on him at the hotel. Testimony indicated that the warrant was related to an earlier drive-by shooting. During a standoff, lasting approximately thirty minutes, Defendant fired multiple times through the door and out the back window of the room at eight officers. Defendant ultimately surrendered and was arrested. Upon entering the hotel room, officers discovered Defendant's wife in the bathtub of the room with a gunshot to her leg inflicted by Defendant.

A grand jury indicted Defendant on October 16, 2014, on the charges of assault by drive-by shooting, a violation of La.R.S. 14:37.1 ; attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1 ; and attempted first degree murder of seven individuals, a violation of La.R.S. 14:27 and 14:30. The State filed an amended bill of information on February 16, 2018, charging Defendant with assault by drive-by shooting, attempted second degree murder, and eight counts of attempted first degree murder. The State amended the bill of information again on February 22, 2018, reiterating the same charges but alleging that the eight counts of attempted first degree murder were committed with the specific intent to kill more than one person.^[1]

On February 11, 2015, Defendant, through appointed counsel, filed a motion to waive his right to a jury trial. The trial court granted that motion on the same day. At the commencement of the resulting bench trial, the State indicated its intention to initially try eight counts of attempted first degree murder. It severed the remaining counts.

Following a multi-day trial, the trial court found Defendant guilty as charged on all eight counts and thereafter sentenced Defendant to the maximum of fifty years at hard labor on each of the eight counts. The sentences were ordered to run concurrently and with credit for time served on each of the eight counts. The State then filed a habitual offender bill of information at that time seeking to enhance Defendant's conviction on the eighth count of attempted first degree murder. At the resulting hearing, the trial court found Defendant to be "at least a fourth felony offender" and vacated the previously-imposed sentence of fifty years on the eighth count of attempted first degree murder. The trial court then re-sentenced Defendant to the mandatory minimum sentence of fifty years at hard labor, without benefit of parole, probation, or suspension of sentence, and with credit for time served on that count. That sentence was ordered to run concurrently with the previously imposed sentences on the seven counts of attempted first degree murder.

....

As indicated in appellate counsel's Anders brief, Defendant's trial counsel filed a Motion and Order to Waive Jury Trial that was granted by the trial court. Although the motion was signed by Defendant's attorney, the motion was not signed by Defendant. Louisiana Code of Criminal Procedure Article 780, however, provides that a motion for waiver of trial by jury "shall be signed by the defendant and shall also be signed by defendant's counsel unless the defendant has waived his right of counsel." As observed by appellate counsel, the written motion includes no indication that Defendant's attorney discussed the waiver with Defendant. Neither is there indication by minute entry that the trial court addressed the waiver with Defendant in open court. Given those factors, as well as the record's silence as a whole as to Defendant's waiver, we find that a remand for evidentiary hearing on the jury waiver issue is required. See, e.g.,State v. Cooley , 15-40 (La.App. 3 Cir. 6/3/15), 165 So.3d 1237, appeal after remand, 15-916 (La.App. 3 Cir. 4/27/16) (unpublished opinion), writ denied , 16-1024 (La. 9/15/17), 225 So.3d 482.

....

Defendant's convictions and sentences are conditionally affirmed. The trial court shall conduct an evidentiary hearing within thirty days of the date of this opinion to determine whether Defendant knowingly and intelligently waived his right to trial by jury. The trial court is further ordered to prepare and lodge an appellate record with this court that contains the transcript of the above-referenced evidentiary hearing within ten days of the hearing. Once that record is lodged with this court, the State and Defendant will be given the opportunity to file briefs should either party wish to raise any issue arising from the hearing.

Thereafter, on May 30, 2019, the trial court, as directed by this court, conducted a hearing to determine whether Defendant knowingly and intelligently waived his right to a trial by jury.

The first witness to testify at the evidentiary hearing was Heath Dorsey ("Mr. Dorsey"), the attorney who filed the written waiver of a trial by jury. Mr. Dorsey testified that he worked for the Calcasieu Parish Public Defender's Office ("PDO") from 2011 to 2016, during which time he represented Defendant in this criminal matter. Although Mr. Dorsey recalled representing Defendant in this matter, he did not recall whether he was the person who actually represented Defendant at arraignment.² Thus, Mr. Dorsey did not recall whether Defendant requested a trial by jury at arraignment. However, Mr. Dorsey did recall that he filed a motion and order to waive a trial by jury in this matter. When asked if he recalled discussing the motion with Defendant before filing it, Mr. Dorsey replied, "I don't have a particular recollection of discussing the waiver with [Defendant]." Mr. Dorsey also testified that he did not recall whether he spoke with Defendant on the day he filed the motion. According to Mr. Dorsey, he typically speaks to his clients before he files motions on their behalf. When asked if he would have signed the motion stating that Defendant wanted to waive a trial by jury without having a basis for doing so, Mr. Dorsey answered, "I think any motion that a lawyer files, he has to have a good faith basis to - - to file the motion." Mr. Dorsey assumed that he was acting in good faith when he filed the motion to waive a trial by jury in this case. Finally, the following colloquy took place between the State and Mr. Dorsey regarding the irrevocability of the motion to waive a trial by jury:

Q. Considering the fact that this would be irrevocable, would you have just filed this willy-nilly without discussing it with your client? Just by chance?

A. You're asking me to speculate. I don't know that I can answer that question.

Q. As part of your practice would you file something that's irrevocable without speaking to your client about it?

A. I don't believe so.

The following colloquy then took place between Mr. Dorsey and the trial court:

EXAMINATION BY THE COURT:

Q. Mr. Dorsey, you say that you don't have a specific or a particular recollection of speaking to Mr. Bartie about filing this motion to waive trial by jury. Would you have filed it without discussing it with him, even though you may not recall the particulars?

A. I don't believe so, Your Honor.

Q. And, Mr. Dorsey, you realize that - - you agree that the right to trial by jury is a fundamental right - - is a fundamental right?

A. Your Honor, as far as I am - - my recollection is that it's enshrined in the Constitution.

The next witness to testify at the evidentiary hearing was Kiara Mumford (Ms. Mumford"), a felony investigator for the District Attorney's Office.³ According to Ms. Mumford, a record of jail calls shows Defendant made a call to the PDO on February 11, 2015. The motion to waive a trial by jury was filed on February 11, 2015. The call lasted nine minutes and eleven seconds and was made at 4:41 p.m. On cross-examination, Ms. Mumford and defense counsel had the following colloquy regarding the "pin numbers" used by prisoners to make phone calls:

Q. Do you know anything about pin numbers that prisoners are given to make phone calls?

A. I'm aware of the pin numbers, yes, ma'am.

Q. Okay. Are you aware that in order for a prisoner to make a phone call they have to put their pin number into the - - somehow into the telephone like they're making a call?

A. Yes, ma'am.

Q. Okay. Are you aware of the procedure or the practice among many prisoners to share pin numbers and use other people's pin numbers?

A. I'm not. No, ma'am.

Q. You've never heard of that?

A. No, ma'am. I'm not - -

When asked if Defendant would have been the only person that had the pin number used in the call at issue, Ms. Mumford replied, "I assume so, yes, ma'am." Ms. Mumford was not aware, however, of any restrictions on the ability of someone else to use the pin number.

The State introduced numerous exhibits:

• A bill of information filed on January 26, 2010, charging Defendant with

...