State v. Franklin

341 So.3d 1237

STATE of Louisiana

v.Gene FRANKLIN, Jr.

NO. 21-KA-531

Court of Appeal of Louisiana, Fifth Circuit.

May 11, 2022

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Ricky L. Babin, Lindsey D. Manda, Donald D. Candell, Gonzales

COUNSEL FOR DEFENDANT/APPELLANT, GENE FRANKLIN, JR., Bruce G. Whittaker

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst

CHAISSON, J.

Defendant, Gene Franklin, Jr., appeals his conviction and sentence for second degree sexual battery. On appeal, defendant contends that the trial court erred in allowing him to represent himself at trial and in discharging a sworn juror during the taking of evidence. Having found no merit to defendant's arguments, we affirm defendant's conviction and sentence. However, we remand the matter for correction of an error patent as noted herein.

PROCEDURAL HISTORY

On December 12, 2016, defendant was charged by bill of information with second degree sexual battery, in violation of La. R.S. 14:43.2. Defendant pled not guilty on January 23, 2017. On July 25, 2017, after the State amended the bill of information to reflect a charge of sexual battery, in violation of La. R.S. 14:43.1, defendant pled guilty with the understanding that no multiple bill would be filed and that the court would sentence him after consideration of a pre-sentence report. However, defendant subsequently filed a motion to withdraw his guilty plea alleging that his plea was not knowingly and voluntarily entered. After a hearing on December 21, 2017, the trial court allowed defendant to withdraw his guilty plea.

On September 25, 2018, defendant proceeded to trial before a six-person jury on the original charge of second degree sexual battery and was found guilty as charged on September 26, 2018. Following his conviction, defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, which were denied by the trial court.

Defendant was ultimately sentenced on June 24, 2019, to fifteen years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Thereafter, on August 15, 2019, the State filed a multiple offender bill of information alleging that defendant was a third-felony offender. On January 27, 2020, the court conducted a hearing on the multiple offender bill and, on March 2, 2020, signed a written judgment finding defendant to be a third-felony offender. On April 26, 2021, the trial court vacated defendant's original sentence and sentenced him to an enhanced sentence of thirty years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals.

FACTS

At trial, the victim, J.T., testified about the events that transpired on October 29, 2016, at the trailer she shared with defendant, her boyfriend at the time.¹ According to J.T., the two were lying down in bed together, and defendant began asking her for sex. When she requested that he wait until he woke up for work, defendant laid on top of her and repeatedly said, "Kiss me, look me in my eye and tell me you love me." J.T. described that defendant then "went to playing with [her] bottom or whatever," which she explained as "rear end." According to J.T., she told defendant to stop several times and to wait until he got up for work. J.T. stated that after she pushed his hands away a couple of times, she felt a "force in [her] booty." She described, "When it was a force, the pain went to my heart and I jumped out the bed." When defendant asked what was wrong with her, J.T. replied that she did not know what was going on, that her heart was hurting, and that she asked defendant, "What you done [sic] to me?" J.T. explained that she looked down, saw blood, and "went into shock from there." J.T. ran to her children on the other side of the house, describing that blood clots were "falling everywhere." She then went to the bathroom and sat on the toilet; when she got up, she noticed that the toilet was covered in blood. She then walked towards the sofa, leaving a trail of blood.

Deputy Ray Marzelli with the St. James Parish Sheriff's Office arrived on the scene in response to a call of a medical emergency. At trial, Deputy Marzelli testified that upon his arrival, he noticed "blood on the floor, and a trail of blood leading down the hall to the bathroom." The officer further described that he saw J.T. sitting in a chair, that she had blood on her legs, and that there was also a fairly large area of blood that had pooled beneath her. When Deputy Marzelli then asked J.T. if she was possibly having a miscarriage, she replied that she was not pregnant and that it was "coming from the rear end." During his testimony, Deputy Marzelli relayed that defendant was at the residence when he arrived and that defendant appeared angry that a deputy was there. Deputy Marzelli further stated that J.T. was very quiet, did not volunteer information to him, and did not say that defendant inflicted any bodily harm to her. According to the deputy, an ambulance arrived on the scene and transported J.T. to the hospital, accompanied by defendant. The hospital records, which were introduced at trial, revealed that J.T. suffered a large laceration from her vaginal area to her rectum, which required emergency surgery. J.T. acknowledged that she gave untruthful stories to hospital personnel about how the injuries occurred and did not tell them that defendant inflicted those injuries on her. J.T. claimed that she did not initially tell the truth about what happened because defendant was with her, and she was afraid of him but also loved and wanted to protect him.²

J.T. was ultimately released from the hospital and returned home with defendant. Several days later, J.T. contacted the sheriff's office and provided a recorded statement that was consistent with her trial testimony. Defendant was subsequently arrested for second degree sexual battery.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defense counsel contends that the trial court erred in allowing defendant to represent himself at trial. He specifically asserts that while the record shows that defendant desired to represent himself and was advised of some of the disadvantages of self-representation, it fails to establish an objective basis for concluding that the waiver was knowing and intelligent.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution give a defendant the right to counsel as well as the right to defend himself. A defendant may represent himself only if he makes an unequivocal request to represent himself and knowingly and intelligently waives his right to counsel. Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; State v. Perry , 17-567 (La. App. 5 Cir. 6/27/18), 250 So.3d 1180, 1191, writ denied , 18-1325 (La. 11/14/18), 256 So.3d 285.

In accepting a waiver of counsel, the trial court should advise the defendant of the nature of the charges, the penalty range for the charges, and the dangers and disadvantages of self-representation, such as the failure to recognize objections to inadmissible evidence and the inability to adhere to technical rules governing trials. State v. Speaks , 16-163 (La. App. 5 Cir. 12/7/16), 204 So.3d 1167, 1199, writ denied , 17-185 (La. 10/16/17), 228 So.3d 751. In addition, the court should inquire into the defendant's age, education, and mental condition and should determine according to the totality of circumstances whether the accused understands the significance of the waiver. State v. Bruce , 03-918 (La. App. 5 Cir. 12/30/03), 864 So.2d 854, 857.

Whether a defendant has knowingly, intelligently, and unequivocally asserted the right to self-representation must be determined on a case-by-case basis, considering the facts and circumstances of each case. State v. Leger , 05-11 (La. 7/10/06), 936 So.2d 108, 147-48, cert. denied , 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The trial court is given much discretion in determining whether the defendant's waiver was knowing and intelligent. An appellate court should not reverse the trial court ruling absent an abuse of its discretion. State v. Perry , 250 So.3d at 1191.

In the present case, the record reflects that the trial judge conducted a thorough colloquy with defendant before granting his unequivocal request to represent himself at trial. On September 26, 2018, subsequent to the selection of the jury and prior to opening statements, defendant clearly expressed his desire to represent himself and actually referenced the language of La. C.Cr.P. art. 511, which provides, in part: "The accused in every instance has the right to defend himself and to have the assistance of counsel." Immediately after this request, the trial court made clear to defendant that the trial was going forward that day, and further asked defendant if he understood that he was doing himself a disservice by going forward without counsel and the grave risk he was taking by representing himself. Defendant stated that he understood. After giving defendant the opportunity to speak to someone in the audience about his choice to represent himself, defendant was sworn in, and the trial judge engaged in a lengthy discussion with him regarding his decision.

During the Faretta hearing, the trial judge determined that defendant could read and write the English language and that he did not have any known illnesses, mental or otherwise, that would in any way affect his ability to make the decision to represent himself.³ The judge also inquired as to his understanding of the law and legal proceedings of the trial court. Further, the judge inquired as to defendant's understanding that he would have to question all of the witnesses, give opening and closing statements, and make objections. Defendant indicated that he understood. The trial judge advised defendant of the dangers and disadvantages of...