State v. Dunn

Citation713 So.2d 479
Parties30,269 La.App. 2 Cir
Decision Date25 February 1998
CourtCourt of Appeal of Louisiana (US)

Louisiana Appellate Project by J. Wilson Rambo, Monroe and H. Paul Garner, for Appellant.

Richard Ieyoub, Attorney General, Walter E. May, Jr., District Attorney, James R. Hatch, Jeffery Robinson, Assistant District Attorneys, for Appellee.

Before BROWN, STEWART and GASKINS, JJ.

[30,269 La.App. 2 Cir. 1] BROWN, Judge.

Defendant, Jerry Dunn, Jr., was convicted of simple escape, adjudicated a fourth felony offender and sentenced to the minimum term of 20 years at hard labor. We affirm.

Facts and Procedural Background

On June 29, 1993, defendant appeared in the Second Judicial District Court, Claiborne Parish, Louisiana, for a preliminary examination in connection with several counts of illegal possession of stolen things. The court found probable cause and defendant was taken to a holding area for transfer back to jail. A deputy was stationed outside the only door to the room. Defendant, wearing orange prison clothes and leg chains, escaped by climbing out of the window, jumping down to a flight of stairs and shuffling away.

Defendant fled to Minnesota, where under the alias John Wayne Cooper, he was apprehended on outstanding charges in that state. After serving 18 months in prison in Minnesota, defendant was extradited back to Claiborne Parish where a charge of simple escape was added to those already pending.

Trial on the escape charge was held on September 16, 1996. A jury found defendant guilty and the trial court sentenced him to five years at hard labor. Thereafter, this being defendant's fourth felony conviction, he was adjudicated a habitual offender and sentenced to the minimum term of 20 years at hard labor.

Defendant has appealed his conviction and sentence.

Discussion

Self-representation

Defendant urges that the trial court erred in finding that he waived his right to counsel, failing to advise him of the dangers of self-representation and failing to [30,269 La.App. 2 Cir. 2] provide him with "stand-by" counsel. Defendant further asserts that he was forced to conduct his own defense in violation of his right to counsel.

When defendant was in court in 1993, on the day of his escape, he refused to be represented by Darrell Avery, the attorney from the Indigent Defenders' Office. At that time, the trial court tediously examined defendant concerning his education and choice not to use a public defender. The court explained in detail the pitfalls of self-representation and emphasized that if defendant chose to be his own lawyer, the rules of evidence would still apply. Defendant steadfastly refused court-appointed counsel.

Following his extradition back to Claiborne Parish, defendant was arraigned on the escape charge. At his arraignment on March 5, 1996, he was represented by indigent defender Darrell Avery. Defendant and his court-appointed counsel were in court again on April 2, 1996, for a preliminary examination and bond reduction hearing. Probable cause was found, the bond was not reduced and trial was set for May 20, 1996. Defendant again objected to being represented by a court-appointed attorney and just before his trial date, retained Rick Chandler. Because he was new to the case, Chandler obtained a continuance of the trial. On June 4, 1996, based upon defendant's failure to pay his fee, Chandler withdrew. On this date, the trial court instructed defendant to obtain an attorney before his next court appearance, which was scheduled for June 24, 1996. Defendant appeared on June 24, 1996, for the court to determine whether he had hired an attorney. 1 Although he was out on bond and employed, defendant had not secured representation and stated, "... I guess I'm going to have to represent myself." The judge quizzed defendant concerning his employment and reminded defendant that his case was [30,269 La.App. 2 Cir. 3] set for trial in September. The court ordered the record to reflect that at the present time, defendant was representing himself.

Defendant's case was on the trial docket for September 16, 1996. On that date, the state announced that it was ready to proceed and the following colloquy occurred between the court and defendant:

THE COURT: ... Mr. Dunn has raised this issue saying, he at this time does not want to represent himself ...

DEFENDANT DUNN: I didn't say I didn't want to represent myself. I said I haven't went through a proceeding to grant me the right to represent myself .... (emphasis added).

THE COURT: Do you want to represent yourself?

DEFENDANT DUNN: Well, I don't have a choice, but I'm not prepared today to represent myself....

Considering defendant's refusal of court-appointed counsel, coupled with his failure to obtain counsel, the trial court found that defendant's conduct constituted a waiver of right to counsel. During the jury selection process, defendant told some prospective jurors that, "I asked for the right to defend myself."

U.S. Constitution Amendments VI and XIV, as well as La. Const. Article I, Sec. 13 guarantee an accused in a criminal proceeding the right to assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Carpenter, 390 So.2d 1296 (La.1980).

An indigent defendant has the right to court-appointed counsel; however, an indigent does not have the right to have a particular attorney appointed. An indigent's right to choose his attorney extends only so far as his ability to retain the attorney of his choice; however, he may not procrastinate in the exercise of this [30,269 La.App. 2 Cir. 4] right to obstruct or thwart the orderly progression of the case. State v. Harper, 381 So.2d 468 (La.1980).

A defendant who wishes to exercise his right to retain counsel of his choice must do so at a reasonable time, in a reasonable manner and at an appropriate stage of the proceeding. State v. Seiss, 428 So.2d 444 (La.1983). An accused's unquestioned right to legal representation at trial can not be manipulated by him, by attempts at last minute substitution or otherwise, so as to secure unwarranted delays or otherwise obstruct the orderly administration of justice. City of Baton Rouge v. Dees, 363 So.2d 530 (La.1978).

Waiver of the right to counsel must be made knowingly, understandingly and intelligently. Faretta, supra; State v. Strain, 585 So.2d 540 (La.1991); State v. Moore, 29,212 (La.App. 2d Cir. 01/22/97), 687 So.2d 647. A defendant may waive his right to counsel if he knows what he is doing, his choice is made with his eyes open and the record reflects his awareness of the dangers and disadvantages of self-representation. Faretta, supra; State v. Strain, supra.

The determination of whether defendant knowingly and voluntarily waived his right to counsel depends on the facts and circumstances surrounding the case, including the background, experience and conduct of the accused. State v. Carpenter, supra; State v. Moore, supra; State v. Kennon, 588 So.2d 1348 (La.App. 2d Cir.1991), writ denied, 600 So.2d 634 (La.1992).

A defendant's refusal to proceed with appointed counsel and his failure to retain counsel on his own may in some circumstances constitute a waiver of the right to counsel. See State v. Harper, supra; State v. McGowan, 359 So.2d 972 (La.1978); State ex rel. Johnson v. Maggio, 449 So.2d 547 (La.App. 1st Cir.1984), writ denied sub nom., State v. Johnson, 450 So.2d 354 (La.1984). If a [30,269 La.App. 2 Cir. 5] defendant repeatedly fails to retain counsel, or if he appears without an attorney after being clearly and unequivocally warned by the trial court that the case will proceed to trial regardless, such fact may support a finding of implied waiver. See State v. Wisenbaker, 428 So.2d 790 (La.1983); State v. Batiste, 96-0526 (La.App. 3d Cir. 12/11/96), 687 So.2d 499, writ denied, 97-0174 (La.06/30/97), 696 So.2d 1003; State v. Mitchell, 580 So.2d 1006 (La.App. 3d Cir.1991), writ denied, 613 So.2d 969 (La.1993); State v. Jones, 565 So.2d 1023 (La.App. 1st Cir.1990), writ denied sub nom., State ex rel. Jones v. State, 585 So.2d 565 (La.1991).

The court history in this case clearly reflects defendant's understanding of the right to counsel and his conscious choice not to accept representation by the court-appointed attorney. The record shows that defendant obtained one trial delay by the last minute enrollment of an attorney who later withdrew for non-payment of his fee. A hearing was thereafter conducted for enrollment of new counsel. At this hearing defendant was reminded of a future trial date and told to be ready.

The 1993 proceeding in which the court fully complied with all requirements to insure defendant's understanding of the consequences of his rejection of court-appointed counsel helps in determining defendant's knowledge, capacity and choice in this case. On the day of trial, defendant stated to the court that he was not claiming that he did not want to represent himself but was only stating that a hearing had not occurred in which he was granted the right to represent himself. The court then specifically asked defendant if he wanted to represent himself. He replied that he did but was not ready for trial. Obviously, defendant was attempting to manipulate the system to secure another delay. This assignment of error is meritless

[30,269 La.App. 2 Cir. 6] Insufficient Evidence to Convict

Defendant argues that the evidence was insufficient to support his conviction of simple escape. The standard of appellate review for a sufficiency of evidence claim 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 offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)....

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  • State v. Higginbotham
    • United States
    • Court of Appeal of Louisiana (US)
    • 22 June 2012
    ...himself despite his protestations that he wanted to be represented by an attorney. In State v. Dunn, 30,269 (La.App.2d Cir.02/25/98), 713 So.2d 479, 490–91,writ dismissed,98–0978 (La.01/15/99), 735 So.2d 644, this court explained the right to counsel, the waiver thereof, and when a defendan......
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    ......Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 859 So.2d 927 (1968), defendant's challenge for cause should have been granted. .         In State v. Dunn, XXXX-XXXX (La.11/1/02), 831 So.2d 862, our supreme court explained Witherspoon and reverse Witherspoon complaints: . The proper standard for determining when a prospective juror may be excluded for cause because of his views on capital punishment is whether the juror's views would "prevent ......
  • State v. Hayden, 98-KA-2768.
    • United States
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    ......There is no longer an enhanced penalty endemic to the simple escape statute as existed when Taylor and Cox were decided. Thus, enhancement of the penalty for simple escape by application of the habitual offender statute is no longer prohibited. State v. Dunn, 30,269 (La.App. 2 Cir. 2/25/98); 713 So.2d 479, writ dismissed, 98-0978 (La.1/15/99); 735 So.2d 644; State v. Goodin, 550 So.2d 801 (La.App. 2 Cir.1989), writ denied, 556 So.2d 1276 (La.1990) ; State v. Townley, 94-1002 (La.App. 3 Cir. 05/3/95); 657 So.2d 129, writ denied, 95-2371 ......
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    ...... Page 1282 . 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 ......
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