State v. Brignac

241 So.3d 528

STATE of Louisiana

v.David BRIGNAC

NO. 17–KA–455

Court of Appeal of Louisiana, Fifth Circuit.

March 14, 2018

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Andrew Decoste

COUNSEL FOR DEFENDANT/APPELLANT, DAVID BRIGNAC, Bruce G. Whittaker

Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore

JOHNSON, J.

Defendant appeals his convictions and sentences for possession of a firearm by a convicted felon and illegal use of weapons. For the reasons that follow, we affirm Defendant's conviction and sentence for felon in possession of a firearm and his conviction for illegal use of weapons. However, we vacate his sentence on his illegal use of weapons conviction and remand the matter for resentencing.

Defendant was initially charged on December 5, 2014 with two counts of illegal use of weapons in violation of La. R.S. 14:94 and pled not guilty. The State subsequently filed a superseding bill of information on May 5, 2016, charging Defendant with one count of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one) and one count of illegal use of weapons by discharging a firearm (count three).¹ After a Faretta² colloquy, Defendant was allowed to represent himself with the assistance of appointed counsel. The matter proceeded to a bench trial on September 15, 2016, and the trial court found Defendant guilty as charged on both counts.

Prior to sentencing, defense counsel moved for the appointment of a sanity commission to consider Defendant's mental capacity to proceed as well as his competency at the time of his trial. The sanity commission conducted an evaluation of Defendant and recommended that Defendant be found incompetent to proceed to sentencing. It deferred its opinion as to Defendant's competency status at the time of trial until it had an opportunity to review the trial transcripts and other related documentation. Despite the sanity commission's recommendation, the trial court found Defendant competent to proceed. Defendant sought a supervisory writ from this ruling, which this Court denied. State v. Brignac , 16–694 (La. App. 5 Cir. 12/9/16) (unpublished writ disposition).

Thereafter, on February 2, 2017, after denying Defendant's motions for post-verdict judgment of acquittal and new trial, the trial court sentenced Defendant to 12 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence on his felon in possession of a firearm conviction, and two years on his illegal use of weapons conviction, to run concurrently with each other.

FACTS

In October 2014, Deputy Brent Baldassaro with the Jefferson Parish Sheriff's Office was dispatched to a wooded area near Destrehan Avenue close to the Harvey Canal in response to a report of someone shooting in the area. He turned down a dirt road heading toward the canal when he encountered a red Chevy Cobalt.³ Deputy Baldassaro testified that live ammunition indicative of an assault rifle was found around the vehicle. He stated that an assault rifle and magazine associated with the rifle were found separately in the nearby woods. He further testified that two individuals, one of whom was Defendant, were subsequently found hiding in the woods.

A witness, Chris Carr, later interviewed by the police, indicated that he had been in an automobile with Defendant, who he identified in a photographic lineup, and another individual, and that there was a firearm located in the vehicle. Although Mr. Carr testified at trial that he did not see Defendant discharge a firearm on that day, the deputy who interviewed Mr. Carr contradicted his claim, stating that Mr. Carr indicated during his interview that he had personally witnessed Defendant discharge the firearm.⁴

The State also presented the testimony of Sergeant Joel O'Lear, a latent print examiner with the Jefferson Parish Sheriff's Office Crime Laboratory, who examined Defendant's fingerprints taken the morning of trial and opined that Defendant was the same person who had been convicted in 2006 for distribution of cocaine as evidenced by the fingerprints contained in the 2006 certified conviction packet that was introduced into evidence.

ISSUES

Defendant raises two issues on appeal. First, he asserts the trial court abused its discretion in declaring him competent to proceed to trial. Second, he contends the trial court erred in failing to obtain a valid jury trial waiver before proceeding with a judge trial.

DISCUSSION

Competency

Defendant first argues that the trial court abused its discretion in rejecting the sanity commission's unanimous recommendation that he was incompetent to proceed to trial.⁵ Defendant acknowledges that this issue was previously addressed by this Court in a writ disposition, but requests that this Court reconsider the issue. The State responds that Defendant's claim should be denied under the "law of the case" doctrine since this Court previously denied relief on this issue in Defendant's writ application, 16–KH–694.

Under the "law of the case" doctrine, an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Earls , 12-448 (La. App. 5 Cir. 12/11/12), 106 So.3d 1149, 1159, writ denied , 13–132 (La. 9/20/13), 122 So.3d 1012. Application of the "law of the case" doctrine is discretionary and the prior denial of a supervisory writ does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. State v. Voltolina , 10-1090 (La. App. 5 Cir. 10/25/11), 77 So.3d 1027, 1031. Reconsideration is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. Earls, supra .

In this Court's previous ruling on Defendant's writ application, the writ panel thoroughly and carefully considered the merits of Defendant's claim that the trial court erred in finding him competent to proceed to sentencing despite the sanity commission's contrary recommendation. The panel concluded that on the showing made, which consisted of the transcript of the competency hearing during which Dr. Rafael Salcedo testified, the trial court did not abuse its discretion. The panel noted that the trial judge based his ruling on his year and a half of interaction with Defendant during which he explicitly found Defendant understood the proceedings as demonstrated by his self-representation, his various conversations with the trial judge, and the questions he asked and arguments he made during trial. State v. Brignac , 16–694 (La. App. 5 Cir. 12/9/16) (unpublished writ disposition). In reviewing the full and complete record on appeal, which consists of the trial transcript as well as various motion hearing transcripts, we find no reason to disturb the writ panel's previous ruling on this issue. Defendant has failed to cite any new facts or additional jurisprudence indicating that this Court's prior disposition was patently erroneous and produced an unjust result, nor does the full record reveal any new evidence indicating such.⁶

Jury Trial Waiver

Defendant next argues that he was entitled to a jury trial but proceeded to a judge trial without a valid waiver. He notes the waiver of a jury trial cannot be presumed, but must be knowingly and voluntarily waived. He contends the record is silent on the issue of a jury trial waiver as there is no colloquy on the issue in any of the transcripts or any reference to a jury trial waiver in the minutes; thus, because there is no evidence of a valid jury trial waiver, he maintains his convictions and sentences should be set aside and the matter remanded for a new trial.

The State responded by filing a motion to supplement the record with a transcript of Defendant's jury trial waiver, which was granted by this Court. The supplement shows that on August 29, 2016, Defendant, appearing in proper person after having been granted the right to self-representation, the prosecutor and the trial judge were discussing the scheduling of trial in open court. The trial judge informed Defendant that trial would be set for August 31, 2016, to which Defendant assented. Defendant then stated, "Excuse me, Your Honor; for the record, I would like to do a Judge Trial." Defendant was sworn in and the following colloquy took place:

THE COURT:

Okay. Mr. Brignac, what you need to know is, you have the right to do that. You have the right to request a Judge Trial.

But what I want you to know is, is that for nineteen years of my life, I was an Assistant D.A., just like Mr. DeCoste over there. Okay?

I tried a lot of cases. Okay. Against Mr. Somoza, and other people that are in this building.

Alright? I want you to understand that, that I've seen and pretty much heard just about everything.

I'll be fair, I'll listen to all the evidence and go where it directs me, but I think it's important for you to understand what I did for a living before I became a Judge. Alright?

Knowing all of that, you still wish to proceed as a Judge Trial?

[DEFENDANT]:

Yes, sir.

THE COURT:

Okay. Alright. We'll do that. It will be a Judge Trial on Wednesday the 31^st.

While this supplementation of the record controverts Defendant's claim that the record is silent on the issue of a jury trial waiver, we are still faced with the issue of whether this jury trial waiver was valid.

Both the Sixth Amendment to the United States Constitution and La. Const. Art. I, § 17 (A) guarantee an accused the right to a trial by jury in felony and certain misdemeanor cases. Except in capital cases, a defendant may knowingly and intelligently waive his right to trial by jury and elect to be tried by the judge. La. Const. Art. I, § 17 ; La. C.Cr.P. art. 780(A) ; La. C.Cr.P. art. 782(B). "[A] criminal defendant's jury waiver is deemed knowing and intelligent when he understands ‘that the choice...