State v. Roman

• Decision Date: 07 December 2001
• Docket Number: No. 2000-K-1705.,2000-K-1705.
• Citation: 802 So.2d 1281
• Parties: STATE of Louisiana v. Bernell ROMAN.
• Court: Louisiana Supreme Court

802 So.2d 1281

STATE of Louisiana v. Bernell ROMAN.

No. 2000-K-1705.

Supreme Court of Louisiana.

December 7, 2001.

Rehearing Denied February 1, 2002.

Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Nicole B. Barron, Counsel for Applicant.

Ike Spears, New Orleans, Counsel for Respondent.

PER CURIAM.¹

Although it readily acknowledged that claims of ineffective assistance of counsel generally belong in post-conviction proceedings unless the record on appeal allows a definitive resolution of the question, State v. Ratcliff, 416 So.2d 528, 530 (La. 1982), and though it recognized that "if an alleged error falls within the ambit of trial strategy it does not establish ineffective assistance of counsel," and, further, that "hindsight is not the proper perspective for judging the competence of counsel's trial decisions," State v. Roman, 99-1699, pp. 2-3 (La.App. 4th Cir.5/10/00), 761 So.2d 829 (unpub'd), the court of appeal nevertheless reversed respondent's conviction and sentence for possession of a firearm by a previously convicted felon in violation of La.R.S. 14:95.1, on grounds that trial counsel's failure to assert a defense of insanity, "albeit unknowing and unintentional, clearly prejudiced the defendant and deprived him of a fair trial." Roman, 99-1699 at 8. After reviewing the record, including the testimony of two psychiatrists who examined respondent in connection with a motion for a new trial which raised questions about his competency at the time of trial and sanity at the time of the offense, the court of appeal found that "more likely than not, defendant trial counsel was not aware of his client's psychiatric history prior to trial." Roman, 99-1699 at 8. "Even if the defendant was competent at the time of trial," the court of appeal observed, "we are convinced that had trial counsel known of the defendant's psychiatric history and raised an insanity defense, there is a reasonable probability the jury's verdict would have been different, particularly where [the state's witnesses] testified at trial that the defendant was acting `crazy' when he brandished the gun." Id. We granted the state's application to reverse the decision below because the present record does not support the underlying premises of the court of appeal's opinion and does not allow a reviewing court to resolve completely the question of whether trial counsel rendered reasonably effective assistance.

Respondent's trial attorney filed the motion for a new trial and in the motion he did not accuse himself of ineffective assistance. Instead, the motion alleged that counsel had discovered since the verdict that respondent had an extensive history of mental health treatment for a mental condition which "may have impaired both his ability to form the requisite intent to commit a crime and his competency to stand trial." The motion asked for the grant of a new trial "in the interests of justice." La.C.Cr.P. art. 851(5).

The trial court did not conduct a hearing on the motion until a full year after it was filed and after respondent had secured new counsel to represent him. In light of the allegations made in the motion, the court had appointed a sanity commission composed of Drs. Rafael Salcedo and Richard Richoux, to examine respondent with regard to his mental status. The psychiatrists interviewed respondent on the morning of the hearing. Although both psychiatrists were aware of respondent's prior treatment for chronic paranoid schizophrenia at the Feliciana Forensic Facility in 1989 on a pre-trial commitment in connection with an unrelated charge, and that he continued to receive out-patient treatment, including anti-psychotic medication, through a local mental health center, they found no basis in their examination of respondent for doubting his competency at that time or at trial a year earlier. On the other hand, the psychiatrists refrained from expressing a firm opinion with regard to whether respondent had been actively psychotic at the time of the charged offense. Respondent had given them a coherent account of the circumstances leading to his arrest which appeared entirely consistent with the defense offered at trial that he had merely brandished a toy gun at his neighbors and had therefore not committed any firearms offense. Nevertheless, the psychiatrists acknowledged that if respondent had in fact brandished a real gun but believed it a toy then he may have been actively suffering from a mental impairment at the time of the offense which could have clouded his perceptions. However, Dr. Salcedo indicated that he would need to review the defendant's complete psychiatric records to address whether respondent had been insane at the time of the offense, i.e., incapable of distinguishing between right and wrong. La.R.S. 14:14. In response to a question from the court, Dr. Richoux explained that "[t]here are points in time at which a person with paranoid schizophrenia might very well be able to distinguish right from wrong. There may also be points in time at which that same person with paranoid schizophrenia cannot distinguish right from wrong, so really what one has to do is try to zero in on the point in time at question." Dr. Richoux also observed that despite the allegations made in the new trial motion, respondent informed both psychiatrists that "he had told his attorney about having a history of mental illness well before standing trial ... there's a difference of recollection or a difference of opinion between Mr. Roman and his attorney in that regard."

At the close of the hearing on the new trial motion, respondent's counsel urged the court to set aside the verdict as a miscarriage of justice because the jury had been deprived of critical information regarding respondent's mental health treatment in determining whether he subjectively believed that the gun he had brandished to his neighbors was simply a toy. Addressing the implications of that argument, that respondent's trial attorney had rendered ineffective assistance by failing to place the information before jurors, the trial court mused that "if we're going to believe Dr. Richoux, that the defendant believed that he had a toy gun, then maybe we should believe Dr. Richoux when he says the defendant told him that he had...