State Of La. v. Bordelon

• Decision Date: 16 October 2009
• Docket Number: No. 2007-KA-0525.,2007-KA-0525.
• Citation: 33 So.3d 842
• Parties: STATE of Louisianav.Gerald BORDELON.
• Court: Louisiana Supreme Court

33 So.3d 842

STATE of Louisianav.Gerald BORDELON.

No. 2007-KA-0525.

Supreme Court of Louisiana.

Oct. 16, 2009.

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PER CURIAM.¹

The Court has before it a motion by defendant, in his own right and through counsel, to waive direct review of his conviction for first degree murder and sentence to death in accord with his expressed desire to forego any and all post-verdict and post-conviction remedies and to proceed directly to execution. Although well over 100 defendants have to one extent or another waived direct review of their convictions and death sentences in the other 35 state jurisdictions providing for capital punishment,² Gerald Bordelon is only the second defendant in this state to assert a waiver of his right to appeal in a capital case since Louisiana adopted the bifurcated capital sentencing procedures approved by the Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 1976). He is also the first to do so from the day that the district court formally sentenced him to death. ³ The question of whether, to what extent, and under what circumstances, a defendant may waive appellate review of his conviction for a capital crime and sentence to death in Louisiana is squarely before the Court.

The state charged defendant by grand jury indictment returned on January 9, 2003, with first degree murder following discovery of the body of his 12-year-old stepdaughter, Courtney LeBlanc, in a wooded area by the Amite River west of Denham Springs, Louisiana. The state alleged that she had died during the commission of an aggravated or forcible rape, or second degree kidnapping. She had disappeared from the trailer in which she lived with her mother and a younger sister outside of Denham Springs, in Livingston Parish, on the morning of November 15, 2002, and the police did not find her body until the late afternoon of November 26, 2002, when defendant led them to a riverside location across the parish line in East Baton Rouge Parish. Defendant subsequently confessed in the Detective Unit of the East Baton Rouge Parish Sheriff's Office that he had entered the trailer on the morning of November 15, 2002, abducted Courtney with the aid of a knife he had grabbed in the kitchen, transported her in his car to Mississippi where he forced her to have oral sex, then drove back to Louisiana and strangled her to death on the banks of the Amite River, concealing her body in the heavy underbrush.

After trial by jury in June, 2006, defendant was found guilty as charged. The penalty phase that followed began with a waiver by defendant of his right to present mitigating evidence, although the defense had actively contested the state's case at the guilt stage on the premise that Courtney's mother, Jennifer Kocke, defendant's wife, had actually committed the murder and then given him directions to find where she had hidden the body of her child, and that defendant had then confessed to the crime to spare his wife. Following a brief penalty phase, the jury returned a sentence of death following deliberation of less than an hour. The jury found as an aggravating circumstance that the victim had died during the commission or attempted commission of aggravated rape or second degree kidnapping. La. C. Cr. P. art. 905.4(A)(1).

On November 6, 2006, the date set for formal sentencing, defendant filed his first of several motions to waive direct appeal. In that pro se motion, defendant asserted his right to waive direct appeal and any subsequent post-conviction proceedings but acknowledged that he could not waive this Court's Rule 28 review and he therefore asked the trial court to lodge the record on appeal in this Court solely for that purpose. In support of his motion, defendant personally addressed the court as follows:

I don't think I'm wrong according to what the Louisiana Code of Criminal Procedure states. The right of an appeal provided by the capital defendants in the Louisiana Code of Criminal Procedure, Article 912.1, it's just that. It's a right. Rights can be waive[d], just like I had the right to remain silent throughout the whole trial. Just like I had the right not to put up mitigating evidence at the sentencing phase of the trial. I had those rights. That's my right. And my right is also to waive any right of appeal.

The Louisiana Criminal Code of Procedure clearly states that. Article 5, as I'm sure you're aware of, ‘shall,’ is mandatory ‘may,’ is permissive. The word, ‘may,’ is used in article 912.1. It states, ‘The defendant may appeal to the Supreme Court from a judgement in a capital cases in which a sentence of death actually has been imposed. ‘Shall,’ is mandatory. ‘May,’ is not....

905.9 and 905.9.1 require a review for excessive sentence of a death sentence by the Louisiana Supreme Court. That's mandatory, but it's mandatory that they review the excessive sentence, not an appeal. That's the only thing that's mandatory is for them to rule whether or not the sentence is excessive or not.... I don't think I'm wrong on that. I think I have a right to waive it, and that's what I'd like to do.

After considering and denying a motion for a new trial filed and argued by the Capital Appeals Project of Louisiana over defendant's objection, and after formally sentencing defendant to death, the trial court then addressed the motion to waive appeal and denied it. “[I]t's my understanding and belief that the law in Louisiana requires an appeal,” the trial judge informed defendant, “and so an appeal you shall get.” The court then signed a motion for appeal filed by the Capital Appeals Project.

The record on appeal was lodged in this Court on March 13, 2007. On the following day, this Court received a motion from Jill Craft, a private attorney in Baton Rouge representing defendant's interests, asserting his right to waive the appeal. The motion attached defendant's pro se motion to waive his appeal filed in the district court and an affidavit by defendant attesting that he persisted in his desire to waive appeal and articulating the reasons why he wished to terminate appellate review of his conviction and sentence, namely, that he is guilty of the crime for which he has been convicted, that he has no desire to prolong the pain he has inflicted on the victim's family and his own family, and that he would commit the same crime again if ever given the chance. Craft's motion also conceded that despite defendant's waiver of his appellate rights, “pursuant to La. C. Cr. P. art. 905.9, the Court is obligated to perform an excessiveness review.”

Shortly thereafter, the Court received a motion from the Capital Appeals Project seeking to enroll formally as counsel of record on appeal for defendant and requesting that this Court refer defendant's motion to waive appeal to the merits of the appeal. This Court deferred acting on defendant's motion to dismiss his appeal, denied the Capital Appeal Project's request to refer defendant's motion to the merits, and deferred acting on the Project's motion to enroll as counsel for defendant. The Court remanded the case to the district court with instructions that the court convene a sanity commission for purposes of determining the defendant's competency to make a knowing and intelligent waiver of his capital appeal. State v. Bordelon, 07-0525 (La.5/7/07) (unpub'd).

In compliance with this Court's remand order, the trial court appointed a sanity commission composed of Drs. Jose Artecona and Herbert W. LeBourgeois, both psychiatrists employed by the Tulane University School of Medicine. The court also enlarged the scope of our remand order by directing the psychiatrists to determine whether defendant is competent to proceed to execution i.e., whether he understands that he is to be executed and the reason why he is to suffer that penalty. See La. R.S. 15:567.1; Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The psychiatrists conducted a wide-ranging investigation including extensive interviews with defendant and reported to the court that defendant is competent to make a knowing and intelligent waiver of his appeal and otherwise competent to act in his own interest although he fully understands he is to be executed for the murder of Courtney LeBlanc. After a hearing conducted on July 3, 2007, at which both psychiatrists testified, the district court found defendant competent to waive his appellate rights and to proceed to execution, and ordered the record of the competency proceedings lodged in this Court as a supplemental record on appeal. Defendant was represented at that hearing by Ms. Craft. The court had formally enrolled her in April, 2007, as counsel of record for defendant, thereby relieving the Capital Appeals Project of any duty to represent him on appeal.

On December 10, 2008, this Court then issued an order directing counsel for the state and defendant to brief specific questions raised by defendant's stated desire to waive his appellate rights and post-conviction remedies to the fullest extent permitted by law. State v. Bordelon, 07-0525 (La.12/10/08) (unpub'd). In particular, the Court directed the parties to address: (1) whether the record supports the finding of the trial court that defendant is competent to waive his appeal; and (2) whether a defendant in Louisiana may waive his right to appellate review of his conviction and sentence in a capital case and, if so, whether defendant expressly waived his right to appellate review of his conviction and sentence. The Court further directed the parties to file sentence review memoranda pursuant to La. S.Ct. Rule 28. On January 14, 2009, this Court then denied the motion of the Capital Appeals Project to enroll as appellate counsel of record for defendant.

In compliance with this Court's directive of December 10, 2008, the state and counsel for defendant have filed briefs addressing the specific questions raised by the Court and...