State v. Frank

• Decision Date: 17 January 2001
• Docket Number: No. 99-KA-0553.,99-KA-0553.
• Citation: 803 So.2d 1
• Parties: STATE of Louisiana v. Antoinette FRANK.
• Court: Louisiana Supreme Court

803 So.2d 1

STATE of Louisiana v. Antoinette FRANK.

No. 99-KA-0553.

Supreme Court of Louisiana.

January 17, 2001.

Opinion Revised April 4, 2001.

Frank J. Larre, Metarie, Denise LeBoeuf, New Orleans, Nicholas J. Trenticosta, Counsel for Applicant.

Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Valentin M. Solino, Susan E. Talbot, Counsel for Respondent.

KIMBALL, Judge.

This is a direct appeal from a conviction of first degree murder and a sentence of death. La. Const. art. V, § 5(D). The defendant's appeal is based on a total of thirty-two assignments of error.¹ However, the principal issues involve (1) the denial of the defendant's pre-trial motion to be declared indigent for the purposes of obtaining state-funded experts; and (2) the denial of the defendant's motion for change of venue. We find that none of the defendant's arguments concerning the guilt phase of her trial constitute reversible error; therefore, the defendant's conviction is affirmed. However, we find that the trial court erred by failing to declare the defendant indigent for the purpose of allowing her the opportunity to show entitlement to state-funded psychiatric and mitigation expert assistance for the sentencing phase of her trial. The defendant's case is, therefore, remanded to the trial court in order for it to hold an evidentiary hearing as to whether the defendant was entitled to state-funded expert assistance for the penalty phase of her trial. If, after a hearing on the matter, the court determines she was so entitled, it is to vacate the defendant's sentence and order a new penalty phase at which the defendant will have the benefit of that expert assistance. If the trial court finds that the defendant cannot make the proper showing of need for obtaining state funds, the defendant may appeal that decision to this court along with the other assignments of error regarding the penalty phase of her trial, the merits of which we do not reach at this time.

Facts

On March 4, 1995, the defendant, then an officer with the New Orleans Police Department, and Rogers Lacaze were arrested and charged with three counts of first degree murder for the deaths of Ronald Williams, Ha Vu, and Cuong Vu. The murders occurred in the early morning hours at the Kim Anh Restaurant in New Orleans East. The Vu family owned the restaurant, and Ronald Williams was an off-duty police officer performing security detail that evening at the restaurant. The defendant had occasionally worked at the restaurant as a security guard and was familiar with the Vu family and Ronald Williams. She and her co-defendant visited the restaurant several times on the night of the murders.

As the restaurant was closing early that morning, Chau Vu, sister of two of the victims, went into the kitchen to count money. She reentered the dining room of the restaurant to pay Ronald Williams, when she noticed the defendant approaching the restaurant yet again. Sensing something was wrong, Chau Vu ran back to the kitchen and hid the money in the microwave before returning to the front of the restaurant. Using a stolen key, the defendant entered the restaurant and began to walk quickly to the back of the building, pushing Chau, one of Chau's brothers, Quoc, and a restaurant employee along with her. Shots rang out, and the defendant ran back to the front of the restaurant. Chau, Quoc, and the employee hid in a cooler in the kitchen, concerned because they did not know the whereabouts of Chau's and Quoc's sister and brother, Ha and Cuong. From inside the cooler, Chau and Quoc could partially see the front of the restaurant. Chau initially could see the defendant, who appeared to be looking for something. The defendant moved out of Chau's line of vision, and then the three hiding heard additional gunshots. Quoc next observed the defendant searching in the area where the Vus usually kept their money. He then saw her walk over to the area where he later found the bodies of his brother and sister, and he heard more gunshots. After the defendant and Rogers Lacaze left the premises, Quoc emerged from the cooler and called 911 to report the murders.

After police officers arrived on the scene, the defendant returned to the restaurant as well. She approached Chau, asking her what happened. Chau found another officer and reported what she had witnessed. After Chau was interviewed in more detail, the defendant and Rogers Lacaze were arrested and charged with first degree murder.

The defendant and Rogers Lacaze were indicted by an Orleans Parish Grand Jury on April 28, 1995. Their trials were severed, and Rogers Lacaze was tried first on July 17-21, 1995, found guilty as charged, and sentenced to death. The defendant's trial began on September 5, 1995, and on September 12, 1995, the jury returned a guilty verdict on all counts and recommended a sentence of death as to all counts. The defendant was formally sentenced to death on October 20, 1995.

Motion to be Declared Indigent

In her first six assignment of errors, the defendant argues that the trial court abused its discretion in not finding her indigent. She further argues that she was entitled to make a showing of need for state-funded experts, but that her right was foreclosed by the court's denial of her motion on indigent status. See State v. Touchet, 93-2839, p. 6 (La.9/6/94), 642 So.2d 1213, 1216

(holding that "for an indigent defendant to be granted the services of an expert at the expense of the state, he must establish that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial").

On August 29, 1995, approximately one week before the defendant's trial was to begin, the trial court conducted a brief evidentiary hearing on the defendant's motion to have herself declared indigent.² The court allowed the defendant to take the stand and testify as to her financial status and ability to pay for the expert services she was requesting that the state fund. The defendant testified that her mother had retained counsel for her, that neither she nor her family owned any real property, that she owned a nineteen-year-old Ford Elite which she bought for $600, that she had accrued benefits with the New Orleans Police department but did not know how much or how she could access the money, and that her mother had sold her furniture for approximately $6000.00, which was used to pay pre-existing obligations and her attorney's fee. The trial court denied her motion on the following day, stating that she was not indigent.³ In its November 27, 2000, per curiam to this court on the issue of the defendant's indigent status, the trial court explained that it had not found the defendant indigent, because it found that she had certain funds available for her defense, consisting of $3800.00 in pension benefits, $1800.00 from furlough time, and $6000.00 from the sale of her furniture. Therefore, the trial court based its finding on the fact that, at most, the defendant at one time had available the approximate sum of $11,600.00 for her defense.

A trial court must consider several factors before determining whether a defendant is indigent and may review its determination at any time during the proceedings. Louisiana Rev.Stat. 15:147(B)(1) provides that:

In determining whether or not a person is indigent and entitled to the appointment of counsel, the court shall consider whether the person is a needy person and the extent of his ability to pay. The court may consider such factors as income or funds from employment or any other source, including public assistance, to which the accused is entitled, property owned by the accused or in which he has an economic interest, outstanding obligations, the number and ages of dependents, employment and job training history, and level of education.

See also State v. Adams, 369 So.2d 1327, 1329 (La.1979)

(citing La.Rev.Stat. 15:147 and 15:148); W. LaFave and J. Israel, 2 Criminal Procedure § 11.2(e) (1984) ("recognizing that the Supreme Court has never offered a specific definition of indigency, but noting that most jurisdictions consider the following factors: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the likely fee of retained counsel for the appeal.").

Applying these factors for determining indigency to the evidence adduced at the August 29, 1995, hearing and through the trial court's investigation into the defendant's benefits from the police department, the record reflects the following: (1) defendant initially retained defense counsel through her mother; (2) defendant had been terminated from the police force and was receiving no income; (3) defendant had accrued retirement benefits of approximately $3,800, which the trial court ordered to go directly to the court reporters; (4) defendant had access to approximately $1800.00 from furlough time; (5) defendant did not own any real property; (6) defendant owned a 1976 Ford Elite for which she paid $600, and which was impounded by police; (7) defendant had sold all her furniture and effects two weeks after her arrest for approximately $6,000; (8) defendant had her mother use money from sale of furniture to pay existing debts and attorney's fees; (9) defendant's mother did not own any real property and is disabled; and (10) defendant had $600 in savings at the time of her arrest, and nothing in savings at the time of the indigency hearing. In addition, with the motion to proceed as an indigent, defendant and both her attorneys submitted affidavits indicating that defendant had exhausted all of her personal funds.

Under the standards set...