State v. Frank

• Decision Date: 22 May 2007
• Docket Number: No. 1999-KA-0553.,1999-KA-0553.
• Citation: 957 So.2d 724
• Parties: STATE of Louisiana v. Antoinette FRANK.
• Court: Louisiana Supreme Court

957 So.2d 724

STATE of Louisiana v. Antoinette FRANK.

No. 1999-KA-0553.

Supreme Court of Louisiana.

May 22, 2007.

Rehearing Denied June 29, 2007.

Capital Post-Conviction Project of Louisiana, Denise LeBoeuf, Nicholas J. Trenticosta, for Appellant.

Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Valentin Michael Solino, Michael Gerard Morales, Assistant District Attorneys, for Appellee.

KIMBALL, Justice.

In a previous direct appeal of this capital case, this court affirmed defendant's conviction for first degree murder in violation of La. R.S. 14:30, but found the district court erred in failing to declare defendant indigent for the purpose of allowing her the opportunity to show entitlement to state-funded expert assistance for the sentencing phase of her trial. State v. Frank, 99-0553 (La.1/17/01), 803 So.2d 1. Consequently, we pretermitted review of defendant's assignments of error regarding the penalty phase and remanded the case to the district court for it to hold an evidentiary hearing to determine whether the defendant was entitled to state-funded expert assistance for the penalty phase of her trial. On remand, the district court held several hearings at which the testimony of a legal expert, various mental health experts, and fact witnesses was introduced. The district court found that defendant was provided access to a mental health expert by her attorney and she refused his assistance. After noting this fact was undisclosed prior to the remand order, the district court concluded defendant was not entitled to a new sentencing phase of her trial.

For the reasons that follow, we find that because defendant was provided access to a mitigation expert by her counsel and refused the expert's assistance, she has not successfully shown that there existed a reasonable probability both that an expert would have been of assistance to the defense and that the denial of expert assistance resulted in a fundamentally unfair trial. Consequently, defendant has not shown prejudice in not obtaining state-funded expert assistance. We conclude she is not entitled to a new sentencing phase on this ground. Finding no reversible error in the remaining assignments of error pretermitted in our original opinion, we therefore affirm defendant's sentence.

FACTS

This case involved a notorious triple murder in the early morning hours of March 4, 1995, at a restaurant in New Orleans East, the facts of which are set forth in our original opinion. Antoinette Frank, a New Orleans police officer who is the defendant herein, and Rogers Lacaze were arrested for the crime later that day. The victims were Ronald Williams, an off-duty New Orleans police officer performing security detail that evening at the restaurant, and Ha and Cuong Vu, two members of the family that owned the restaurant. On April 28, 1995, a grand jury indicted defendant and Lacaze on three counts of first degree murder. Lacaze was tried separately on July 17-21, 1995, found guilty as charged, and sentenced to death. His conviction and sentence of death have been affirmed by this court. State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063. Defendant's trial began on September 5, 1995, and on September 12, 1995, the jury returned a guilty verdict on all three counts and recommended a sentence of death on all counts.

PENALTY PHASE

After introducing all the evidence presented in the guilt phase, the state began its presentation of evidence in the penalty phase by calling Dr. Philip Scurria, a psychiatrist who examined applicants to the police academy on behalf of the New Orleans Police Department. Prior to examining defendant, Dr. Scurria testified that he reviewed a written background investigation of defendant, the results of two psychological tests taken by defendant, and a report written by Dr. Drolley, a psychologist who administered the tests and recorded her interpretations of the tests. Dr. Scurria explained that Dr. Drolley's report rated defendant "poor" in "Tolerance/Openmindedness" and "Impulse Control." The report also indicated that defendant "faked good" on the test, which means that she tried to make herself appear better and more qualified than she was.

Dr. Scurria interviewed defendant for about 30 minutes. During the interview, he got the impression that she was preoccupied with making herself look good, which was consistent with the test results. He also noted she was a "name dropper." Dr. Scurria found her to be average in social maturity and tolerance, emotional stability, and competence and assertiveness. He found her to be unacceptable in integrity and forth-rightness. Dr. Scurria explained that he found her unacceptable in this category because the background investigation revealed that she had been terminated from a previous job, but in the interview she denied ever having any job-related problems or being fired from a job. Dr. Scurria opined defendant was below average in insight and empathy, sound judgment and common sense, freedom from psycho-pathology, and conventional and rule abiding. He found she was above average in her effectiveness in social relationships. Dr. Scurria stated that he believed she suffered from some psycho-pathology, but he saw no evidence that she suffered from any major psychiatric disorder. Dr. Scurria concluded that defendant was an unacceptable candidate for the police academy. He testified that the misrepresentation of her job history was a major factor in his decision to find her unacceptable.

In addition to Dr. Scurria's testimony in support of the state's case in chief in the penalty phase, jurors also heard two witnesses, John Stevens and Anthony Wallace describe a violent encounter with Lacaze, the co-perpetrator whom defendant had allowed to accompany her on official police business. They testified that after an argument with Lacaze, they were subsequently stopped by defendant, who was in a patrol car, and told to get out of the car. Lacaze exited the car with a gun and after a fight, the gun discharged. Based on the report by defendant, the incident led to the arrest of Wallace and Stevens and charges of attempted murder, armed robbery and resisting arrest, but those charges were later dropped. The state's penalty phase case ended with victim impact testimony from Mary Williams, Officer Williams's wife, and Nguyet Vu, the mother of two of the victims, who poignantly described through an interpreter how defendant and Lacaze had "stripped off Ha Vu's and Cuong Vu's hopes and dreams as well as Mrs. Vu's."

The defense began its sentencing phase presentation with the testimony of Irvin Bryant, Jr., a former civil sheriff's deputy who testified that he had seen Wallace pick up a gun during the incident involving Lacaze and point it in the direction of defendant and Lacaze. Defendant never removed her weapon from its holster, even when Wallace pointed the gun at her. He explained that after he grabbed Wallace, Lacaze ran toward them and he grabbed Lacaze also. The witness released Lacaze when defendant informed him that Lacaze was with her and told him to release him. The witness handcuffed Wallace with defendant's handcuffs and then the police arrived on the scene.

The defense next presented the testimony of Captain John Landry, a New Orleans Police Officer who was defendant's Commander in 1994. Captain Landry testified that defendant had won an officer-of-the month award in 1994 on the basis of her productivity in making arrests. Defense also presented the testimony of Mable Geniesse, defendant's mother's aunt, who informed jurors that she had known defendant since she was a little girl and that she had been "good and never did got in no trouble." Helen Adams, defendant's grandmother also testified. Ms. Adams praised defendant as "always a good child" and pleaded with jurors to spare her life. Finally, defense called defendant's mother, Mary Frank, who testified that defendant made good grades in school, and "never was in trouble. Never put out of school." Ms. Frank further stated, "I never had a problem with her coming home late. She never drank. She never smoked." Ms. Frank explained that defendant went to college at Delgado and was in her second year at the time of her arrest.¹ After the presentation of this testimony, the defense rested. During closing argument, defense counsel explained mitigating circumstances to the jurors and argued that defendant had no prior significant history of criminal activity, that the state's own psychiatrist recognized defendant had some psycho-pathology, that the offense was committed while the defendant was under the influence of extreme mental or emotional distress, that the defendant was a young offender, 23 years old at the time, and under the influence or domination of another, Lacaze, and that she was a principal whose participation was relatively minor.

The jury returned a recommendation of the death sentence on all three counts. Defendant was formally sentenced to death on October 20, 1995. Defendant appealed her conviction and sentence directly to this court.

ORIGINAL APPEAL

On appeal, this court affirmed defendant's conviction, but we found merit to the defendant's assertion that the district court erred in failing to declare her indigent for the purpose of obtaining state-funded expert assistance for the sentencing phase of her trial. State v. Frank, 99-0553 (La.1/17/01), 803 So.2d 1 ("Frank I"). After determining that the district court abused its discretion in not declaring defendant indigent pre-trial, we considered what, if any, prejudice defendant suffered as a result of not being declared indigent. Frank I, 99-0553 at p. 6, 803 So.2d at 8. In considering this issue, we noted that in State v. Touchet, 93-2839 (La.9/6/94), 642 So.2d 1213, this court addressed the specific issue of the showing an indigent needs to make to obtain state-funded expert assistance as follows:

Henceforth, for an indigent defendant...