30,733 La.App. 2 Cir. 7/06/98, State v. Branch

• Decision Date: 06 July 1998
• Parties: 30,733 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1277

714 So.2d 1277

30,733 La.App. 2 Cir. 7/06/98

STATE of Louisiana, Plaintiff-Appellee, v. Deshawn BRANCH, Defendant-Appellant.

No. 30733-KA.

Court of Appeal of Louisiana Second Circuit.

July 6, 1998.

Rehearing Denied Aug. 13, 1998.

Wilson Rambo, for Defendant-Appellant.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Robert Stephen Tew, Assistant District Attorney, for Plaintiff-Appellee.

Before NORRIS, HIGHTOWER and PEATROSS, JJ.

[30,733 La.App. 2 Cir. 1] NORRIS, Judge.

Deshawn Branch, defendant, was convicted for possession of twenty-eight grams or more, but less than two hundred grams of cocaine in contravention of La. R.S. 40:967 F(1)(a). Branch appeals; we affirm the conviction, and amend and affirm the sentence.

I.

On November, 19, 1996, Lt. Pat Stewart of the Monroe Police Department received a call from a confidential informant that a black male wearing a black hat, a black jacket, carrying drugs and a firearm, and standing on the 2700 block of Lee Avenue, a high-crime area, was possibly involved in a recent bank robbery. Pursuant to that information, several officers were directed to stop and interview the suspect. The officers arrived upon the scene in marked police vehicles and spotted the suspect who matched the exact description provided by the informant. Before the police could approach or give any orders to stop or halt, the suspect ran. The police gave chase and restrained the suspect, later identified as Branch. During a struggle with the officers, Branch reached for a handgun tucked behind his jacket and in the small of his back; he was immediately exposed to OC or pepper spray.

He was cuffed, arrested for carrying a concealed weapon, and read his Miranda rights. A search subsequent to the arrest revealed 4 1/2 ounces of crack cocaine, an electronic scale, $676 in cash, and a pocket knife found on his person.

While being transported to the police station, he told the officers that he was a drug dealer intending to sell the $3500 of cocaine that he had been fronted with for a profit, and that he would not have shot a "brother," referring to one of the officers.

Branch was charged with possession of four hundred grams or more of [30,733 La.App. 2 Cir. 2] cocaine; the bill was later amended to the instant charge. An attorney appointed to represent the indigent Branch filed motions for discovery, preliminary examination and to suppress the fruits of the search and statements.

Prior to the hearing on the motion to suppress, Branch filed a motion to represent himself, asserting that having been apprised of the dangers of self-representation, he still wished to discharge his attorney. The trial court held a hearing and found a knowing and intelligent waiver of the right to representation. However, Branch made it clear that at that time, he only sought to waive his right to representation for purposes of the suppression hearing. Nonetheless, on the eve of trial, Branch again asserted his desire to waive his right to representation and to discharge his attorney. After another hearing, the District Court again determined that the waiver was knowingly and intelligently made and discharged his attorney from any further responsibility.

After the case had been submitted, a unanimous jury returned a verdict of guilty as charged. The District Court then sentenced Branch to 18 years at hard labor without benefit of probation, parole, or suspension of sentence. ¹

Branch has appealed pro se; the District Court also ordered the Louisiana Appellate Project to represent him on appeal, although he had earlier rejected their assistance. ² We therefore consider the assignments of error raised in both briefs. Cf. State v. Anderson, 29,282 (La.App.2d Cir. 6/18/97), 697 So.2d 651.

[30,733 La.App. 2 Cir. 3] II.

By his first (Appellate Project) assignment, Branch contends there exists insufficient evidence to support a conviction.

When the defendant challenges both the sufficiency of the evidence and one or more trial errors, the reviewing court first reviews sufficiency, as a failure to satisfy the Jackson standard will moot the trial errors. State v. Hearold, 603 So.2d 731 (La.1992); State v. Adams, 30,815 (La.App.2d Cir. 6/24/98), 715 So.2d 118.

The Constitutional standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); La.C.Cr.P. art. 821.

The essential elements of the charged offense consist of a (1) knowing or intentional possession, (2) of 28 grams or more but less than 200 grams, (3) of cocaine. ³ La. R.S. 40:967 F(1)(a).

Branch only argues that no evidence was presented regarding the weight of the cocaine found on his person. This assignment is devoid of merit. At trial, Lt. Stewart and Officer Slakter both testified that the seized cocaine weighed 4 1/2 ounces, which equates to over 127 grams. Moreover, state's exhibit # 1 consisted of the seized cocaine for the jury to evaluate, in addition to the pictures depicting the cocaine.

The elements of possession and cocaine are satisfied as well. Several officers testified that they found the cocaine in Branch's pockets in addition to Branch's statement that he was a drug dealer. Also, Linda Armstrong, director of [30,733 La.App. 2 Cir. 4] the North Louisiana Crime Lab and an expert in the identification of controlled dangerous substances, testified that she had analyzed the seized substance and it was in fact cocaine.

III.

Assignments of error No. 2 and 3 (Appellate Project) contest two incidents in which Branch waived his right to counsel in favor of self-representation. Branch argues that the trial court erred in failing to adequately advise him as to the dangers and disadvantages of self-representation and failed to conduct a sufficient colloquy to determine whether there was a knowing and intelligent waiver of his right to counsel.

The accused in a criminal proceeding has the right to assistance of counsel for his defense. U.S. Const. Amends. VI, XIV; La. Const. art. I, § 13; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

A valid waiver of the right to counsel must be knowing and intelligent. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Although a defendant need not himself have the skill and experience of a lawyer to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with eyes open. State v. Dunn, 30,269 (on reh'g) (La.App.2d Cir. 5/15/98), 713 So.2d 479; see also State v. Moore, 29,212 (La.App.2d Cir. 1/22/97), 687 So.2d 647. A trial judge must determine whether the assertion of his right to represent oneself is clear and unequivocal. State v. Strain, 585 So.2d 540 (La.1991). The judge, in accepting a waiver of counsel at trial, should advise the accused of the nature of the charges and the penalty range, should inquire into the accused's age, education and mental condition, and should determine according to the totality of [30,733 La.App. 2 Cir. 5] the circumstances whether the accused understands the significance of the waiver. State v. Strain, supra, citing Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Absent a knowing and intelligent waiver of this right, no person may be imprisoned unless represented by counsel at trial. State v. King, 96,1286 (La.App. 3d Cir. 10/8/97), 702 So.2d 814 and citations therein.

Moreover, the adequacy of a defendant's self-representation and legal competence are not determinative of a valid waiver of counsel. The propriety of allowing a defendant to make this election is not judged by what happens in the subsequent course of the representation. State v. DeGrate, 25,732 (La.App.2d Cir. 3/30/94), 634 So.2d 965, writ denied 94-1362 (La.App.2d Cir. 10/7/94), 644 So.2d 630.

In the instant case, Branch twice asserted his right to self-representation. ⁴ Each time the District Court carefully questioned him to determine if his waiver was knowing and intelligent, and advised him of the seriousness of his decision.

Prior to the suppression hearing, Branch asserted that he wanted to waive his right to counsel and represent himself. The resulting colloquy revealed that Branch was 26 years of age, completed high school and two semesters of college, and had spent the prior three months reading the Louisiana Code of Criminal Procedure. In addition, the court specifically asked Branch if he knew about the types of pretrial motions, could prepare and file these and other motions, and had knowledge about the Code of Evidence. The District Court also reminded Branch that his court appointed attorney was very experienced and that the crime charged carried a minimum term without probation, parole, or suspension of sentence. Thereafter, Branch clearly asserted his right to represent himself for purposes of [30,733 La.App. 2 Cir. 6] the suppression hearing. The court granted Branch's request, but had his court appointed attorney available in the courtroom to provide advice if requested.

On the morning of trial, Branch again asserted his right to represent himself and to waive his right to counsel. The court again had Branch sworn, recited the crime with which he was charged, and specifically noted the minimum sentence, thereby alluding to the seriousness of the possible consequences. The court informed Branch that his court-appointed attorney was very experienced and had more knowledge than Branch. The court then inquired into Branch's knowledge concerning the evidentiary rules and criminal procedure. Branch was able to cite certain articles, and knew how many jurors were required to convict him. Branch...