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STATE v. ELZY, 2013 KA 0143. (2013)

Court: Court of Appeals of Louisiana Number: inlaco20130918301 Visitors: 17
Filed: Sep. 13, 2013
Latest Update: Sep. 13, 2013
Summary: NOT DESIGNATED FOR PUBLICATION KUHN, J. The defendant, Alvin Elzy, was charged by bill of information with obscenity, a violation of La. R.S. 14:106. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant was sentenced to three years imprisonment at hard labor. The State filed a habitual offender bill of information, and, following a hearing on the matter, the defendant was adjudicated a second-felony habitual offender. The trial court vacated the three-yea
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NOT DESIGNATED FOR PUBLICATION

KUHN, J.

The defendant, Alvin Elzy, was charged by bill of information with obscenity, a violation of La. R.S. 14:106. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant was sentenced to three years imprisonment at hard labor. The State filed a habitual offender bill of information, and, following a hearing on the matter, the defendant was adjudicated a second-felony habitual offender. The trial court vacated the three-year sentence and resentenced the defendant to six years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant now appeals, designating two counseled assignments of error and four pro se assignments of error. For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.

FACTS

On January 6, 2011, Anita Cotton was at home in Franklinton, Louisiana. Recovering from an upper respiratory infection, Ms. Cotton was sitting outside underneath her carport when she observed the defendant staring at her as he walked back and forth several times in front of her house. She did not know the defendant, but knew he was staying at her neighbor's house nearby. At one point, the defendant walked to the side of a neighbor's house. Still able to see him clearly, Ms. Cotton observed the defendant pull down his pants and masturbate while watching her. She saw the defendant's genitals. Ms. Cotton became very upset and ran inside and called the police. The defendant was arrested a short time later.

The defendant did not testify at trial.

COUNSELED ASSIGNMENT OF ERROR NO. 1

In his first counseled assignment of error, the defendant argues the trial court erred in denying his pro se motion to represent himself at trial.

An accused has the right to choose between the right to counsel, guaranteed in the state and federal constitutions, and the right to self-representation. However, the choice to represent oneself must be clear and unequivocal. 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, 05-0011 (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). See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). When a defendant requests the right to represent himself, the defendant's technical legal knowledge is not relevant in determining if he is knowingly exercising the right to defend himself. A trial judge confronted with an accused's unequivocal request to represent himself need determine only if the accused is competent to waive counsel and is "voluntarily exercising his informed free will." State v. Santos, 99-1897 (La. 9/15/00), 770 So.2d 319, 321 (per curiam).

On the first day of trial, just prior to jury selection, defense counsel sought a continuance:

On behalf of my client, Your Honor, and in order to protect the record, [he] — wishes additional time to consult with me about possible defenses. I'll state for the record that I've met with him several times. Since he was transported, I met with him several times in the last week and have had an opportunity to discuss it. But he wishes more time, so, therefore, I would move on his behalf to continue the matter at this time.

The trial court denied the motion. Following a recess, with the prospective jurors in the courtroom, defense counsel informed the trial court that the defendant wished to waive his right to a jury trial. The trial court denied the motion as untimely. The defendant then informed the trial court that he had a motion. When the prospective jurors were excused, the defendant requested to represent himself. The following exchange between the defendant and the trial court followed:

The Court: I am going to — why do you want to represent yourself? Mr. Elzy: Because I feel I think it's in my best interest here, my defense here. The Court: And what is your — you've got a fifth grade education, sir? Mr. Elzy: Your Honor, yes, sir, I have. And I got other cases here where I represented myself, if you would like to check the record on it. The Court: Have you had any success on those cases? Mr. Elzy: They are pending right now in the First Circuit. The Court: After you were already convicted? Mr. Elzy: Right. Would you like to see it? The Court: I don't need to see that, sir. It is my belief that it would not be appropriate at this time for you to represent yourself in this matter, and I have appointed the Public Defenders Office as your attorney; and they are going to remain your attorney throughout the course of this trial. Mr. Elzy, what that means is that you've got to consult and discuss it. If you want to make notes and pass those to Mr. Talley, you can do that; but I'm not going to have you disrupt the proceedings by interjecting during the course of the trial. Mr. Elzy: I would just put my motion before the Court. You denying my motion for self-representation? The Court: That's correct. * * * * * The Court: I do not believe that he's capable of effectively representing himself. I think he's better served having Mr. Talley as his attorney and I'm going to keep Mr. Talley on the case. And you-all can coordinate your offense accordingly. . . .

The defendant did not make a request to represent himself until the first day of trial. At no time prior to the beginning of trial did he request, either orally or in writing, to represent himself. However, prior to the start of voir dire, the defendant, in short order, first asked for a continuance, then to waive a jury trial, and then to represent himself.

We find no error in the trial court's ruling. The record indicates that rather than making a knowing and intelligent waiver of his right to counsel, the defendant chose instead to employ dilatory tactics. The defendant's request to represent himself appeared to be more of an attempt to manipulate the system rather than a genuine desire to waive his right to counsel. See State v. Bridgewater, 00-1529 (La. 1/15/02), 823 So.2d 877, 895-96, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003); State v. Hegwood, 345 So.2d 1179, 1181-82 (La. 1977). Given the posture of the defendant's request, particularly in light of the trial court's concern over the defendant's ability to assume his own representation on the first day of trial, we see no basis to disturb the trial court's ruling.

Accordingly, the trial court did not err in denying the defendant's motion to represent himself. This counseled assignment of error is without merit.

COUNSELED ASSIGNMENT OF ERROR NO. 2

In his second counseled assignment of error, the defendant asks this court to examine the record for any error under La. C.Cr.P. art. 920(2).

This Court routinely reviews the record for such errors, whether or not such a request is made by a defendant. Under La. C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 05-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So.2d 1277.

This counseled assignment of error is without merit.

PRO SE ASSIGNMENTS OF ERROR

In his pro se assignments of error, the defendant argues he was denied effective assistance of counsel. It also appears the defendant argues the bill of information was not timely filed; he is challenging the habitual offender proceedings; and he is challenging the denial of his motion to represent himself.

Prior to voir dire, the trial court addressed several of the defendant's handwritten pro se motions and summarily denied them. In denying some of the motions, the trial court noted the inscrutable, rambling style of the defendant's writing. In denying one motion, the trial court stated, "I have reviewed that motion and, quite frankly, it is barely comprehensible, [I] find that it's without merit and I'm denying that motion." Shortly thereafter, the trial court stated, "As best I can tell is close to being incomprehensible. I find it has no merit and I'm denying that motion as well."

Similarly, this Court is confronted with a barely intelligible pro se brief. However, we will address the issues that appear to be raised and are afforded even the most meager argument by the defendant. We note initially the defendant's argument regarding the right to represent himself has already been addressed in a counseled assignment of error. Additionally, the defendant's argument that the bill of information was not timely filed is baseless. The defendant raised this issue via a pretrial pro se motion to quash and, prior to voir dire, the trial court addressed the motion and denied it. We agree with the ruling of the trial court, which stated:

I note that as far as the bill of information, the date of offense of January 6, 2011, the date the bill was filed was January 28, 2011. Clearly, it was timely. Consequently, any motion relative to the timeliness of filing of the bill of information does not have merit. I'm going to deny the motion to quash based on that.

Regarding the habitual offender hearing, to the extent the defendant argues that the State did not prove his identity or the predicate conviction, the assertion is baseless. In his pro se brief, the defendant states:

[T]he multi-bill proceedings did not have proof, of, such prior conviction of, the defendant and petitioner required to, be, proves as, the testimony of, the officer and proper person authorized to, make, such determination stated simulare [sic] print's and not exactly stated[.] It, was the print of, the defendant and petitioner and the defense of, the defendant and petitioner[.]

Corporal James Folks, with the Franklinton Police Department, was qualified at the habitual offender hearing as an expert in fingerprint analysis and identification. Corporal Folks testified that one of the defendant's fingerprints taken two days prior to the habitual offender hearing matched the fingerprint on a 1982 bill of information charging the defendant with attempted aggravated rape. The defendant was found guilty of attempted aggravated rape and sentenced to twenty-five years imprisonment at hard labor. He completed that sentence in 2009. The defendant's date of birth on the certificate of release matches the date of birth on the instant bill of information. Furthermore, the trial judge informed counsel at the habitual offender hearing that he had also presided over the defendant's obscenity trial and had sentenced him on that conviction. Accordingly, the defendant's identity and predicate conviction were proven, and he was properly adjudicated a second-felony habitual offender.

Regarding the ineffective assistance of counsel claim, the defendant appears to take issue with defense counsel's performance, although no specific examples of ineffective assistance are made clear. For example, the defendant states in his pro se brief:

[P]re-tr. motions, and effective assistance at all critical stages, including the fileing [sic] of, all motions by the ap[p]ointed counsel in the instant case under Strickland vs. Washington and the 4, 5, 6, 8 and 14 Amend of the due process of law clause which the defendant and above petitioner never waived any pre-tr-motions and ap[p]ointed counsel should have which ... effected the outcome of the instant case[.]

The defendant makes other similar inscrutable comments about defense counsel in his pro se brief.

A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the trial court, where a full evidentiary hearing may be conducted. However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Carter, 96-0337 (La. App. 1st Cir. 11/8/96), 684 So.2d 432, 438. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

In the instant matter, the allegations of ineffective assistance of counsel cannot be sufficiently investigated from an inspection of the record alone. To the extent that the defendant is attacking decisions relating to investigation, preparation, and strategy, such decisions cannot possibly be reviewed on appeal. Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond what is contained in the instant record, could these allegations be sufficiently investigated.1 Accordingly, these allegations are not subject to appellate review. See State v. Albert, 96-1991 (La. App. 1st Cir. 6/20/97), 697 So.2d 1355, 1363-64. See also State v. Johnson, 06-1235 (La. App. 1st Cir. 12/28/06), 951 So.2d 294, 304.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

FootNotes


1. The defendant would have to satisfy the requirements of La. C.Cr.P. art. 924, et seq., in order to receive such a hearing.
Source:  Leagle

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