On January 27, 2006, the Defendant, Harold Dewayne Baylor, Sr., was charged by bill of information with attempted carjacking, a violation of La.R.S. 14:27 and La.R.S. 14:64.2, and unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4. The Defendant was arraigned on February 10, 2006, and he entered a plea of not guilty to all charges.
Jury selection commenced on June 20, 2006. On June 22, 2006, the jury found the Defendant guilty as charged. The Defendant was sentenced on July 28, 2006, to one year in the Louisiana Department of Corrections for attempted carjacking and to three years with the Louisiana Department of Corrections for unauthorized use of a motor vehicle with said sentences ordered to be served consecutively. Defense counsel then gave oral notice of his intent to appeal.
The State filed a bill of information charging the Defendant as a habitual offender on November 14, 2006. On February 26, 2007, the Defendant was found to be an habitual offender. Thus, the sentences that had been previously imposed were vacated, and he was sentenced to serve seventeen years at hard labor on each count, with each count to be served concurrently.
On March 12, 2007, the Defendant filed a pro se Notice of Appeal and Motion for Appointment of Appellate Counsel. The motions were denied on April 4, 2007. The Defendant filed an Application for Post-Conviction Relief seeking an out-of-time appeal on July 17, 2007. That application was denied on August 7, 2007. By order of the trial court issued on October 25, 2007, the Defendant was granted an out-of-time appeal. On November 16, 2007, the Defendant filed a pro se Motion for Appointment of Appellate Counsel. The trial court issued an order appointing the Louisiana Appellate Project to handle the appeal on December 4, 2007.
The Defendant is now before this court asserting three assignments of error. The Defendant contends the following: 1) the
George Drewitt allowed the Defendant to use his truck in exchange for crack cocaine. The Defendant did not return the truck and was stopped by police while in possession of the truck. Upon exiting the truck, the Defendant fled from police. While fleeing from police, the Defendant jumped through the open window of a car being driven by Freddie Butler. The Defendant was subsequently apprehended and convicted of unauthorized use of a motor vehicle and attempted carjacking.
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are three errors patent and an additional issue requiring discussion.
ERROR PATENT NUMBER 1:
The first error patent concerns the habitual offender proceeding. The record does not indicate the Defendant was advised of his right to remain silent, his right to a formal hearing and his right to have the State prove its case against him.
This court has found such error to be harmless when the defendant is adjudicated a habitual offender after a full hearing, and the defendant does not testify or acknowledge his status as an habitual offender. See State v. Alexander, 05-276, 05-277 (La.App. 3 Cir. 11/2/05), 916 So.2d 303 and State v. Staton, 05-612 (La.App. 3 Cir. 2/1/06), 922 So.2d 1216, writ denied, 06-1249 (La.11/22/06), 942 So.2d 553. In this case, a full hearing was held, and the Defendant did not testify or acknowledge his status as an habitual offender. Accordingly, we find that the trial court's failure to advise the Defendant of these rights was harmless.
ERROR PATENT NUMBER 2:
Second, we find that the Defendant was provided incorrect information regarding the time limitation for filing an application
ERROR PATENT NUMBER 3:
Third, we find that the sentencing minutes require correction. The court minutes of sentencing state in pertinent part, "Court sentenced accused to be committed to the Louisiana Department of Corrections. Accused to serve 017 Year(s). Sentence is to be served at Hard Labor. Sentence is to run concurrent." The sentencing transcript reveals that the judge imposed a sentence of seventeen years on each count, to run concurrently. Thus, we order the trial court to correct the sentencing minutes to accurately reflect the sentences imposed by the court.
ISSUE REQUIRING DISCUSSION; NO ERROR PATENT OCCURRED:
Finally, we find that there is an issue worth discussing even though no error occurred. The Defendant was sentenced as an habitual offender for his convictions of both attempted carjacking and unauthorized use of a motor vehicle. At the conclusion of the habitual offender hearing, the court stated:
We find that no error occurred in imposing an enhanced sentence for each offense as the convictions were separate criminal offenses committed at separate times and did not arise out of a single criminal act or episode. See State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, and State v. Ward, 94-490 (La.App. 4 Cir. 2/29/96), 670 So.2d 562, writ denied, 97-642 (La.9/19/97), 701 So.2d 165. Furthermore, even if the offenses did arise out of a single criminal act, our supreme court recently held that enhancement of each is permissible:
State v. Shaw, 06-2467, p. 20 (La.11/27/07), 969 So.2d 1233, 1245.
ASSIGNMENT OF ERROR NO. 1:
In his first assignment of error, the Defendant contends the evidence did not support convictions for either unauthorized use of a motor vehicle or attempted carjacking.
State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, ___ U.S. ___, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).
At trial, George Drewitt testified that he was new in town and ended up at the Defendant's residence in November of 2005.
Drewitt testified that the last time he saw the truck was when the Defendant let a neighbor use it. Drewitt testified that he did not "remember having much of a
Drewitt then testified that the Defendant eventually forced him to leave the residence, chasing him off with a stick, and the Defendant did not have the truck at that time. Drewitt testified that he was not allowed to wait for the truck at the Defendant's residence or on the street where the Defendant lived, as neighbors would chase him from their yards. Drewitt testified that a neighbor "supposedly" chased him with a gun. This prompted Drewitt to contact police, wherein he also reported that the Defendant had his truck. Drewitt then testified that, "I took it as him being responsible for my truck."
Drewitt testified that he did not make an agreement to allow anyone to keep his truck. He further testified that when he left the Defendant's residence he made it clear that he wanted his truck back and that the Defendant no longer had permission to use it. Drewitt testified that on November 19, 2005, he received a call from the Defendant, who stated he would return the truck in exchange for two hundred dollars.
Officer Scottie Clark was on duty on November 13, 2005. Officer Clark testified that Drewitt approached him in the middle of Gabriel Lane and said he "switched out his truck for drugs earlier that day" to someone called Pluto and wanted to report his truck missing. Drewitt advised Officer Clark that he had seen his truck up the street; however, Officer Clark was not able to locate it. Officer Clark advised Drewitt to file a report for unauthorized use of a vehicle and drove Drewitt home. Officer Clark testified that he never determined the identity of Pluto.
Henry Charles was at the Defendant's residence on November 13, 2005.
Officer Douglas Prestridge testified that he was on duty on November 19, 2005. On that date, he was informed that a red Dodge Dakota was in the area and an occupant of the truck was attempting to sell it back to the owner. He, along with another officer, attempted to stop the truck, which was occupied solely by the Defendant. The Defendant eventually turned into a driveway, where he exited the truck and began running. Officer Prestridge pursued the Defendant on foot. During the chase, Officer Prestridge observed the Defendant dive through the open passenger window of a white car and
Officer Jason Neal was working with Officer Prestridge on November 19, 2005. Officer Neal testified that he chased the Defendant, who eventually dove into the open passenger window of a car and struggled with the driver. The car then stopped. When Officer Neal approached the car, Freddie Butler, the driver of the car, was fighting with the Defendant. Officer Neal subsequently testified that the momentum from the Defendant diving through the window could have caused the contact between the driver and the Defendant. Officer Neal testified that, as far as he was aware, the Defendant identified himself as Pluto.
Butler testified that on November 19, 2005, he was turning onto Augusta Street when he saw two police officers chasing someone. Butler testified that as he was driving, the Defendant jumped head first into the open passenger window of his car and said, "Go, go, go." When the Defendant said "go," Butler testified that he put the car in park, got out of the car, opened the door, and pulled the Defendant, whose feet were still hanging out the window, halfway out of the car. Butler testified that the Defendant never laid a hand on him, did not wrestle with him, did not have a weapon, and did not threaten him. Additionally, Butler testified that the Defendant never attempted to get his wallet.
UNAUTHORIZED USE OF A MOTOR VEHICLE
The Defendant was convicted of unauthorized use of a motor vehicle, which is "the intentional taking or use of a motor vehicle which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently." La.R.S. 14:68.4.
In State v. Joseph, 05-368 (La.App. 5 Cir. 1/17/06), 921 So.2d 1060, the fifth circuit discussed unauthorized use of a motor vehicle as follows:
Id. at 1063-64.
In brief to this court, the Defendant asserts that the entire case rested on Drewitt's questionable credibility. The Defendant asserts that Drewitt conveniently omitted the terms of the loan of his truck and never testified that it was for a specified time or when he expected it to be returned. The Defendant points out that Drewitt never testified that the truck was kept longer than the agreed upon time and, when Drewitt initially talked to police, the Defendant did not have Drewitt's truck.
The Defendant further points out that Drewitt testified that a neighbor "supposedly" chased him with a gun. The Defendant asserts that it would seem Drewitt would be able to say whether someone chased him with a gun, and if he had been chased with a gun, he would have reported it to police. The Defendant asserts that he did not initially take the truck, so the question then becomes, was there an agreement as to when it was to be returned and, if so, what was the agreement.
The Defendant then asserts that if Drewitt did not testify to or perhaps recall the agreement, the State did not meet its burden of proof. The Defendant further argues that his request for money in exchange for the return of the truck did not indicate a taking. The Defendant asserts that in light of the events surrounding the loan of the truck, the request for money is far more indicative of the use of the truck as collateral so that Drewitt would be fronted drugs.
We find that the Defendant had Drewitt's permission to use the truck while Drewitt was at the Defendant's residence; however, Drewitt testified that when he was forced to leave the Defendant's residence, he made it clear that he wanted his truck back and the Defendant was no longer permitted to use it. Charles returned the truck to the Defendant and later saw the Defendant drive the truck. The Defendant then called Drewitt on November 19, 2005, and stated he would return the truck if Drewitt paid him two hundred dollars. Additionally, Drewitt was driving the truck when he encountered the police and fled the scene upon exiting the vehicle. We find that flight by the Defendant was indicative of his guilty knowledge that he was not authorized to use the truck. See State v. Dunbar, 07-219, p. 8 (La.2/26/08), 978 So.2d 899, 904.
The verdict indicates the jury chose to believe Drewitt's testimony that the Defendant did not have permission to use the truck after Drewitt left the Defendant's residence and that credibility determination should not be second guessed by this court. State v. Hatch, 06-1587 (La.App. 3 Cir. 6/6/07), 964 So.2d 394. Based on the evidence presented, we find that the State proved beyond a reasonable doubt that the Defendant drove Drewitt's truck without Drewitt's permission. Accordingly, the Defendant's conviction for unauthorized use of a motor vehicle is affirmed.
The Defendant was also convicted of attempted carjacking. "Carjacking is the intentional taking of a motor vehicle, as defined in R.S. 32:1(40), belonging to
To support a conviction for attempted carjacking the State must prove that the Defendant had the specific intent to take Butler's car and did or omitted some act toward accomplishing his goal. "Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La.R.S. 14:10(1); [State v.] Neal, 2000-0674 p. 10, [La. 6/29/01),] 796 So.2d  at 657." Draughn, 950 So.2d at 592-93.
In State v. Bean, 04-1527, pp. 9-10 (La. App. 1 Cir. 3/24/05), 899 So.2d 702, 709, writ granted on other grounds, 05-1106 (La.3/8/06), 925 So.2d 489, writ denied, 05-1106 (La.11/3/06), 940 So.2d 652, the first circuit discussed taking in the context of theft as follows:
The Defendant asserts the State failed to prove he used force or intimidation and that he intended to take Butler's car. There are few reported cases involving attempted carjacking. In State v. Singleton, 01-282 (La.App. 4 Cir. 11/7/01), 801 So.2d 1150, writ denied, 01-3170 (La.9/20/02), 825 So.2d 1168, Lind, the owner of the vehicle, testified that the defendant grabbed her purse and entered her vehicle as she was exiting the vehicle. The defendant then exited the vehicle, and demanded that she give "it" to him. Lind assumed that because the car key was the only thing she had, that the key was the "it" to which the defendant referred. The court found that it could be inferred from the circumstances of the encounter that the defendant possessed the specific intent to take Lind's car, and did an act in furtherance of the offense to support the conviction for attempted carjacking.
In State v. Jones, 33,657 (La.App. 2 Cir. 8/23/00), 765 So.2d 1191, writ denied, 00-2779 (La.6/29/01), 794 So.2d 825, the defendant entered the passenger side of a van parked at a grocery store and told the owner to drive or be killed. A struggle ensued and the owner of the vehicle fell out of the van. The owner's wife emerged from the store and began to struggle with the defendant, who got into the driver's seat of the van and attempted to drive off. The wife managed to take the keys from the ignition and the defendant fled the scene. The court found the evidence was sufficient to support the defendant's conviction for attempted carjacking.
The Defendant contends that the evidence against him in this regard is minimal and invites this court to find that Butler, the owner of the car of the alleged attempted highjacking, would be in a superior position to ascertain the intent of the Defendant than that of two chasing police officers. Further, the Defendant points out that Officer Neal conceded that the Defendant's momentum could have caused the contact between he and Butler.
In declining this invitation, we note the recent case of State v. Ordodi, 06-207, pp. 14-15 (La.11/29/06), 946 So.2d 654, 662, wherein our supreme court overturned this court's reversal of a conviction by stating, "[i]n reviewing the evidence of the defendant's actions . . . we cannot say that the jury's determination is irrational under the facts and circumstances presented to them. . . ." Here, we are unable to hold that the jury was "irrational" in choosing to favor the view of the two police officers over that of Butler. While Butler, admittedly, had a better vantage point from which to view the actions of the Defendant, the jury was able to view the witnesses live, whereas we are limited to a reading of a cold transcript of the proceeding. As such, the jury had a better vantage point from which to weigh the testimony of the witnesses, and we are directed to uphold such findings if they are not irrational. Thus, the Defendant's conviction for attempted carjacking is affirmed.
ASSIGNMENT OF ERROR NO. 2:
In his second assignment of error, the Defendant contends the trial court erred in refusing to order a psychiatric evaluation to determine his competency.
On June 20, 2006, court convened and the parties were informed that, because of the late hour, jury selection would commence the following morning. Defense counsel informed the trial court that the Defendant would like to make a motion. The following exchange then occurred:
The following day, defense counsel informed the trial court that the Defendant instructed him to file a motion for sanity commission and that he would not be filing the motion. Defense counsel then stated he had no good faith belief that the Defendant was not able to understand the nature of the proceedings against him or assist counsel. Defense counsel additionally told the trial court that the Defendant no longer wanted to be represented by him. The trial court would not relieve defense counsel of his duties. The trial court then stated the following regarding the motion for sanity commission:
Jury selection followed and verdicts were returned on June 22, 2006.
With the help of inmate counsel, the Defendant filed a pro se "Motion for Psychiatric Examination" on February 21, 2007. Therein, the Defendant asserted that he discussed with his appointed attorney the possibility that he suffered from a serious psychological disturbance, which his family could validate, and that his ability to understand the seriousness of the offenses should have been examined. The Defendant further asserted that he could not understand the proceedings against him or assist in his defense as a result of mental disease or defect and an "acquittal was entered into the record of a prior unrelated offense."
Court convened on February 26, 2007, in the Defendant's absence. At that time, the State informed the trial court that the Defendant filed a motion for a sanity commission. Defense counsel informed the trial court that the motion was a pro se motion. The trial court dismissed the motion, stating, "I'm not saying that the motion itself may not have any merit, but I want it filed only by counsel of record." Defense counsel was given the opportunity to adopt the Defendant's motion. Defense counsel stated that, based on his conversations with the Defendant, he did not think the Defendant was incompetent; therefore, he had no basis to file such a motion. The trial court then stated, "Okay, well, let's put that on the record, because I just said what I will do with these pro se sanity motions."
Subsequently, in a sidebar conference, the following occurred:
The Defendant was brought to the courtroom, and he told the trial court that he had his inmate lawyer file a motion regarding sanity. Defense counsel informed the Defendant that the trial court had denied the motion. The Defendant then stated, "Oh. Didn't let me — [.]" The trial court informed the Defendant that the motion had been summarily denied and proceeded with the habitual offender hearing.
In brief to this court, the Defendant asserts that after he orally requested a sanity commission be appointed, the trial court should have further investigated the issue despite defense counsel's refusal to join in the motion. The Defendant further asserts he was not allowed to explain the nature of his complaints. The Defendant notes that the trial court denied the motion because no formal motion had been filed. The Defendant asserts that a written motion is not required by La.Code Crim.P. art. 642; therefore, the failure to present a written motion should not have barred the trial court's consideration of the issue. The Defendant additionally notes the trial court did not inquire as to when or by whom he was diagnosed as a paranoid schizophrenic or what medication he was taking. The Defendant points out that his written "Motion for Psychiatric Examination" was denied in his absence based on the fact that the trial court would not consider such a pro se motion.
The Defendant asserts that several red flags should have alerted the trial court to the necessity of inquiring into his ability to understand the proceedings and assist counsel, including the following:
The Defendant points out that the State said he was "crazy as looney." The Defendant asserts that this comment shows something more was going on in this case than the record reflects. He then asserts it was incumbent upon the trial court to determine if he was competent to proceed.
In State v. Cyriak, 96-661 (La.App. 3 Cir. 11/6/96), 684 So.2d 42, the defendant argued that the trial court erred in not granting his oral motion for post-trial sanity commission and in failing to grant his request for a recess during the habitual offender hearing. At the start of the habitual offender proceedings, defense counsel made an oral motion to "delay proceedings and asked the trial court to appoint a
Id. at 48.
In Cyriak, 684 So.2d 42, this court went on to find that the trial court erred in denying the defendant's motion, as the record did not adequately reflect that the trial court found reasonable grounds to doubt the defendant's mental capacity to proceed. This court further noted that the defendant was never given an opportunity to present evidence regarding his mental capacity to proceed and the trial court did not take any steps to satisfy itself as to the defendant's mental capacity to proceed.
Accordingly, we find that this matter should be remanded to the trial court for an evidentiary hearing, wherein the trial court is to determine whether there were reasonable grounds to doubt the Defendant's capacity to proceed to trial and sentencing.
ASSIGNMENT OF ERROR NO. 3:
In his third assignment of error, the Defendant contends the trial court failed to sufficiently articulate a basis for the imposition of a seventeen-year sentence as to each count.
The Defendant argues that the trial court did not comply with La.Code Crim.P. art. 894.1. He asserts that during the initial sentencing hearing, the trial court indicated there was a pre-sentence investigation report. However, the Defendant states that he received significantly harsher sentences and, at the habitual offender hearing, no basis for those sentences was given. The Defendant further asserts that he benefited by the State's decision to prove he was a second rather than a fourth offender, but that did not relieve the trial court of its duty to set forth the reasons for imposing the sentences at issue.
The Defendant did not file a motion to reconsider the sentence; therefore, his claims are barred by La.Code Crim.P. art. 881.1. State v. Hargrave, 05-1027 (La. App. 3 Cir. 3/1/06), 926 So.2d 41, writ denied, 06-1233 (La.11/22/06), 942 So.2d 552. Accordingly, this assignment of error will not be considered.
This court found three errors patent. The first is that the record does not indicate the Defendant was advised of his right to remain silent, his right to a formal hearing, and his right to have the State prove its case against him during the habitual offender proceeding. We find that error harmless. The second is that the Defendant was provided incorrect information regarding the time limitation for filing an application for post-conviction relief. We therefore order the trial court to inform the Defendant of the correct provisions of article 930.8 by sending appropriate
For the above reasons, the Defendant's convictions and sentences for unauthorized use of a motor vehicle and attempted carjacking are conditionally affirmed on the evidence in the record on appeal. However, the case is remanded to the trial court for an evidentiary hearing to determine whether there were reasonable grounds to doubt the Defendant's capacity to proceed.
If the trial court finds there were not reasonable grounds to doubt the Defendant's capacity to proceed, the trial court is instructed to inform the Defendant of the correct provisions of article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings. Additionally, the trial court is ordered to correct the sentencing minutes to accurately reflect the sentences imposed by the trial court.
If the trial court finds there were reasonable grounds to doubt the Defendant's capacity to proceed, the trial court should comply with La.Code of Crim.P. art. 643, et seq. If the trial court finds the Defendant did not have the capacity to proceed, the Defendant's convictions and sentences for unauthorized use of a motor vehicle and attempted carjacking are reversed, vacated, and set aside and the trial court is instructed to comply with the mandates of La.Code Crim.P. art. 648.
The Defendant may appeal from any adverse ruling of the issue of capacity to proceed, and in the absence of any such appeal, this court affirms the Defendant's convictions and sentences.
THIBODEAUX, Chief Judge, dissents and assigns written reasons.
THIBODEAUX, Chief Judge, dissenting in part.
In affirming the Defendant's conviction for attempted carjacking, the majority errs and stands Jackson v. Virginia's doctrine of insufficiency review on its head. No rational trier of fact could have found beyond a reasonable doubt that the Defendant had the specific intent to commit carjacking and performed an act toward accomplishing that goal.
State v. Mussall, 523 So.2d 1305 (La. 1988) eruditely explains:
Id. at 1309-10 (footnote omitted).
In invoking the wisdom of Professor Wright, the important points are that "the court is not to substitute its judgment of what the verdict should be for that of the jury, but that at the same time the jury cannot be permitted to speculate if the evidence is such that reasonable jurors must have a reasonable doubt." Id. at 1311 (quoting 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE & PROCEDURE, CRIMINAL 2d, § 467 (2d ed.1982)). What the majority has decided is exactly what is prohibited in a sufficiency of the evidence review: it has allowed the jury to speculate on evidence so skimpy and factually tenuous that any rational person would have a reasonable doubt. The paucity of evidence borders on the embarrassing.
Louisiana Revised Statutes 14:64.2(A) defines carjacking as "the intentional taking of a motor vehicle . . . belonging to another person, in the presence of that person . . . by use of force or intimidation." The evidence fails to disclose a "taking." The Defendant simply jumped head first into the open passenger window of a vehicle being driven by the alleged victim, Mr. Butler. The Defendant never took control of the car. How could he commandeer the car when his feet were still hanging out of the window? No rational juror could find beyond a reasonable doubt that this act
Moreover, the alleged victim, Mr. Butler, testified that the Defendant never threatened him, did not wrestle with him, had no weapon and never laid a hand on him. The majority concedes this. How could any rational juror, based on this evidence, find that force or intimidation was used?
The majority relies on the police officers' testimony. That is unpersuasive. Officer Prestridge said that it appeared the Defendant was attacking Mr. Butler. Officer Neal conceded that the contact between Mr. Butler and the Defendant may have been incidental. Thus, a police officer's subjective feelings trump the objective assertions of a victim. How rational can that be? I realize justice is sometimes blind, but "such blindness does not include a state of insensibility to that which is so obvious." Trahan v. Superior Oil Co., 204 F.Supp. 627, 632 (W.D.La.1962), aff'd, 322 F.2d 234 (5th Cir.1963).
The majority eviscerates the function of a reviewing court and relinquishes our court's authority completely to the emotional vicissitudes of a jury's discretion; the effect is that such discretion is completely unfettered. As the majority states, "the jury was able to view the witnesses live whereas we [the appellate court] are limited to a reading of a cold transcript of the proceeding." Consequently, "the jury had a better vantage point from which to weigh the testimony of the witnesses. . . ." While factional findings and credibility determinations are within the province of the factfinder and are entitled to deference, they are not entitled to infallible omniscience. Discretio est discernere per legem, quid sit justum—unlimited discretion does not exist in the law!
The majority's reliance on State v. Ordodi, 06-207 (La.11/29/06), 946 So.2d 654, is equally unpersuasive. Ordodi did not articulate any new principles of law, nor does it compel the affirmance of a conviction regardless of the featherweight nature of the evidence. Ordodi simply concluded that the supreme court could not "say that the jury's determination [was] irrational under the facts and circumstances presented to them." Id. at 662 (emphasis added). In contrast, the jury's determination in convicting the Defendant of attempted carjacking was irrational and legally insupportable.
For the foregoing reasons, I dissent.