State v. Duhon

• Decision Date: 13 June 2017
• Docket Number: No. 17-19.,17-19.
• Citation: 224 So.3d 1
• Parties: STATE of Louisiana v. Darrin Kashy DUHON aka Darrin Duhon
• Court: Court of Appeal of Louisiana — District of US

224 So.3d 1

STATE of Louisiana
v.
Darrin Kashy DUHON aka Darrin Duhon

No. 17-19.

Court of Appeal of Louisiana, Third Circuit.

June 13, 2017

Chad M. Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806–2930, COUNSEL FOR DEFENDANT/APPELLANT: Darrin Duhon

Jeff Landry, Attorney General, Marty L. White, Andrea Barient, Assistant Attorneys General, Louisiana Department of Justice, P.O. Box 94005, Baton Rouge, LA 70804–9005, (225) 326–6200, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Van H. Kyzar, Judges.

KYZAR, Judge.

The defendant, Darrin Kash Duhon,¹ pled guilty to one count of manslaughter, a violation of La.R.S. 14:31, and two counts of attempted manslaughter, violations of La.R.S. 14:27 and La.R.S. 14:31. He was sentenced by the trial court to forty years at hard labor on the manslaughter conviction and eight years at hard labor on each count of attempted manslaughter, with the two eight year sentences to run concurrently with each other, but consecutively to the forty-year sentence. The defendant appeals his sentences. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

The facts presented at the guilty plea proceeding reveal that the defendant and his wife lived in Breaux Bridge, Louisiana, next door to his wife's grandmother, Mildred Hebert, and her aunt and uncle, Emmaline and Charlie Thibodeaux. On the morning of September 1, 2012, Mrs. Hebert and Mrs. Thibodeaux were in the kitchen while Mr. Thibodeaux was working in the yard. The defendant entered the home, retrieved a 9mm handgun from a closet, shot Mrs. Hebert twice, and shot Mrs. Thibodeaux multiple times. As Mr. Thibodeaux entered the home, the defendant also shot him. After shooting his victims, the defendant called 911 and then returned to his home and collected his nine-year-old son, who he drove to his brother's job site and dropped off.

Thereafter, the defendant drove onto I–10 from the Breaux Bridge exit and began following a vehicle driven by Allison Spikes until she exited onto Ambassador Caffery Parkway in Lafayette. When Ms. Spikes pulled into the parking lot of the Ambassador Caffery Inn, the defendant parked next to her and attempted to carjack her car. He fled the scene when Ms. Spikes locked her door and contacted the Lafayette Police Department on her cell phone. He was later apprehended by the Abbeville Police Department following a high-speed chase, after which he was turned over to the St. Martin Parish Sheriff's Office.

The defendant was originally charged by bill of information with three counts of

224 So.3d 3

attempted first degree murder. Upon the death of one of the victims, the state dismissed one of the attempted first degree murder charges, and a grand jury indicted the defendant on one count of first degree murder. Both charging instruments were filed under the same docket number. The defendant initially entered a plea of not guilty and not guilty by reason of insanity to the three counts of attempted first degree murder and filed a motion to form a sanity commission to determine his sanity both at the present and at the time of the offenses. However, after the grand jury indictment on the charge of first degree murder, the defendant withdrew his motion for a sanity commission. The defendant entered a plea of not guilty to the charge of first degree murder, but later changed his plea to not guilty and not guilty by reason of insanity. Thereafter, a joint motion for a sanity commission was filed by the state and the defendant. The defendant later entered a guilty plea to one count of manslaughter and two counts of attempted manslaughter pursuant to a plea agreement and was sentenced as stated.

ERRORS PATENT

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 there is one error patent concerning the withdrawal of the request for the appointment of a sanity commission.

Louisiana Code of Criminal Procedure Article 642 states:

The defendant's mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.

On January 22, 2013, defense counsel filed a pleading entitled "Motion to Form Sanity Commission" in which he requested the appointment of a sanity commission to examine the mental condition of the defendant both at the present time as well as at the time of the offenses. The motion indicated that the request was based on a defense investigator's observation that the defendant showed characteristics of having a mental disorder. The trial court set the matter for hearing on February 7, 2013. The court minutes and the transcript from that day indicate that defense counsel withdrew the motion prior to the trial court's ruling thereon and that the defendant was not present in court for the hearing. In requesting to withdraw the motion, defense counsel stated:

Your Honor, the Public Defender's Office represents Mr. Duhon. It is set today for a Motion for Your Honor, that motion was filed a while back when Mr. Duhon was originally arrested for three (3) counts of attempted murder. One of the alleged victims subsequently died and he got indicted this past week for first degree murder. So in light of that, we are going to withdraw the motion at this time because it is a whole new ball game with the new charge. I believe that matter is going to be set for an arraignment later this month and we will determine if and when we will re-file the Sanity Commission at that time.

The appointment of a sanity commission is only required when the trial court finds that there are reasonable grounds to doubt the mental capacity of a defendant to proceed to trial. La.Code Crim.P. art. 643. In State v. Normand , 04-840, pp. 3-4 (La.App. 3 Cir. 12/15/04), 896 So.2d 98, 100, writ

224 So.3d 4

denied , 05-231 (La. 5/6/05), 901 So.2d 1094, this court stated as follows:

The appointment of a sanity commission "is not a perfunctory matter or a ministerial duty of the trial court nor is it guaranteed to every accused in every case." State v. Nix , 327 So.2d 301, 323 La.1975) ; State v. Sepulvado , 93-2692 (La. 4/8/96), 672 So.2d 158. The burden of proof lies with the defendant. The defendant must show "by a clear preponderance of the evidence reasonable grounds for the trial judge to believe he is mentally deficient." State v. Cyriak , 96-661, p. 8 (La.App. 3 Cir. 11/6/96), 684 So.2d 42, 47. Moreover, "[t]he fact that the defendant's capacity to proceed is called into question does not, for that reason alone, require the trial court to order a mental examination of the defendant." **4 State v. Lott , 574 So.2d 417, 424 [ ( ]La.App. 2 Cir.), writ denied , 580 So.2d 666 (La.1991), affirmed after remand, 27,849 (La.App. 2 Cir. 4/3/96), 671 So.2d 1182. The trial court has great discretion in ruling on a determination of competency, and its decision will not be overturned on appeal absent an abuse of discretion. State v. Comeaux , 514 So.2d 84 (La.1987) ; State v. Lowenfield , 495 So.2d 1245 (La.1985).

We find that the trial court erred in failing to specifically rule on the defendant's January 22, 2013 motion to appoint a sanity commission contesting the defendant's capacity to proceed before allowing counsel to withdraw the motion.

In State v. Tyler , 11-1123 (La.App. 3 Cir. 5/9/12), 89 So.3d 510, writ denied , 12-1314 (La. 11/30/12), 103 So.3d 364, the defendant claimed on appeal that the trial court erred in allowing defense counsel to withdraw a motion to appoint a sanity commission as it was a prohibited step in furtherance of the prosecution. The trial court had signed an order appointing a sanity commission, but the defendant had not yet been examined. Although the contradictory hearing on the motion was scheduled, the motion to request a sanity commission was withdrawn by defense counsel. This court found merit to the defendant's claim, stating:

Louisiana Code of Criminal Procedure Article 643 requires the trial court order a mental examination of Defendant when it has reasonable ground to doubt Defendant's mental capacity to proceed. Louisiana Code of Criminal Procedure Article 644 requires the court appoint a sanity commission to examine and report on the mental condition of Defendant within seven days after a mental examination is ordered. The examination was ordered in the present case, indicating the trial court found reasonable ground to doubt Defendant's capacity to proceed. See State v. Strain , 42,809 (La.App. 2 Cir. 12/5/07), 972 So.2d 1184, and State v. Nomey , 613 So.2d 157 (La. 1993). Withdrawal of a motion to appoint a sanity commission has been found to be a further step in the prosecution which improperly removes the ultimate decision of competency from the trial court. State v. Carney , 25,518 (La.App. 2 Cir. 10/13/95), 663 So.2d 470, Strain , 972 So.2d 1184, State v. Darnell , 43,048 (La.App. 2 Cir. 8/13/08), 988 So.2d 870. Thus, we find allowing the

...