DocketNumber: NO. 17-KA-419
Citation Numbers: 258 So. 3d 1031
Judges: Johnson
Filed Date: 10/17/2018
Status: Precedential
Modified Date: 7/29/2022
Defendant/Appellant, Jordan Hicks, appeals his convictions for two counts of second degree murder from the 24th Judicial District Court, Division, "J". For the following reasons, Defendant's convictions and sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
On April 11, 2013, a Jefferson Parish Grand Jury indicted Defendant and co-defendant, Ernest L. Payne Jr.,
On June 2, 2017, Defendant filed a motion for new trial, arguing that because the trial court would not allow the "privately hired attorney to represent defendant," the trial court prevented him from choosing his own representation, and as a result, he was entitled to a new trial. This motion was heard on June 7, 2017, and after argument by counsel, the trial court denied the motion. After waiving delays regarding sentencing, the trial court sentenced Defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence on each count to run concurrently with each other. Defendant filed a motion for appeal in open court following sentencing, which the trial court granted on June 8, 2017. The instant appeal followed.
ASSIGNMENTS OF ERROR
On appeal, Defendant alleges the trial court erred in: 1) denying his right to proceed to trial with the counsel of his choosing; 2) denying his retained counsel's request for a continuance; and 3) denying his motion for new trial.
*1034LAW AND ANALYSIS
Assignments of Error Numbers One, Two and Three
In his assignments of error, Defendant argues that the trial court erred in denying his motion for continuance, thereby denying him his right to counsel of his choice. As a result, Defendant contends that the trial court erred in denying his motion for new trial based on this allegation.
The record reflects that Defendant was arraigned on May 29, 2013, and was initially represented by John Benz of the Public Defender's Office. Subsequently, on August 15, 2014, Martin Regan filed omnibus motions, including a motion to enroll as counsel of record. From August 19, 2013 through April 21, 2014, the minute entries reflect that Aidan Shah, with Mr. Regan's firm, made appearances on Defendant's behalf. On June 25, 2014, Mr. Shah filed a motion to withdraw as counsel of record asserting that "[c]ircumstances have developed in the course of representation that have caused an irremediable breakdown in the attorney-client relationship which prevents undersigned counsel from providing effective assistance of counsel." Mr. Benz was then reappointed as counsel of record on July 14, 2014. The minute entries reflect that Mr. Benz made appearances on Defendant's behalf from that point onward.
Nearly three years later, on May 1, 2017, and two weeks before the scheduled trial date, attorneys Martin Regan and Adam Koob appeared in court, with Mr. Koob indicating they were "enrolling on Mr. Hicks." The record reflects that all parties approached and a bench conference was held off the record. The court then stated,
Martin Regan is present in the courtroom today. Mr. Benz is also present in the courtroom. Mr. Benz has been representing Mr. Hicks up to this point.
Mr. Regan and Mr. Koob have approached the Court this morning indicating that they have had discussions with Mr. Hicks' family about representing him.
Mr. Regan I just want to state something for the record so that it is all very clear. Mr. Hicks' trial is set and has been set for sometime for the court's trial docket of May 15...[i]t is a 2012 murder case that has been continued for any number of reasons over the course of those years. Mr. Hicks is entitled to have his trial. The District Attorney is entitled to have their trial as this matter is presently set and the Court has cleared its docket in anticipation of trying the case this week. This case will go forward on that week.
That being said, certainly, Mr. Hicks has a right to choose his Counsel. If he intends to hire you and if you intend to enroll as Counsel of Record, I am not jamming you at this point because I understand from the discussion at the bench that you have some other issues that you need to resolve.
Just understand that if you file a motion to enroll in this case, you will be his attorney and it will go to trial on May 15, which is at this point only 14 days away.
Mr. Regan then indicated that he was "familiar with the case having represented him previously," though he had two other "newer" matters set in a different jurisdiction on May 15, and he indicated he would "see what [he could] do to move those," and "let the Court know." The court then explained, "so [that] everything [was] very clear," that Mr. Benz was still Mr. Hicks'
*1035attorney "until such time as the Court enrolls and dismisses you or enrolls Mr. Regan and allows you to withdraw. If Mr. Regan never files the motion, then you are on for May 15th." The court went on to state, after Mr. Koob interjected, that
Mr. Koob indicated that in anticipation of the representation a motion may have already been filed. Since I have told you, Mr. Regan, on the record that if it gets filed, I am signing it. But that means you understand-we understand that may have been filed not prematurely, but in advance of this discussion and as such I will hold that motion until such time as I get a call from your office indicating that, yes, it is okay to sign it.
The instant record does not contain a motion to enroll, signed or otherwise, filed by Mr. Regan or Mr. Koob.
The State responds that, importantly, the May 1, 2017 transcript does not reflect that Mr. Regan and Mr. Koob were actually retained as counsel by Defendant or his family (as is stated in the motion for new trial). The State notes that neither Mr. Koob nor Mr. Regan filed a motion to enroll, nor did Mr. Benz file a motion to withdraw. Moreover, the record also reflects that no written motion to continue the May 15, 2017 trial date was filed by any party. Additionally, the record reflects that Defendant proceeded to trial without objection.
Based on these facts, the State asserts that there are no pretrial rulings concerning this alleged issue of which Defendant complains-there were no written motions filed concerning the alleged issue, nor were there oral motions, rulings on oral motions, or objections made.
At the outset, there is no evidence in the record that a written motion for a continuance was filed or that an oral motion was made seven days in advance of the May 15, 2017 trial, as per La. C.Cr.P. art. 707.
Nevertheless, Defendant alleged the trial court erred in denying his motion for new trial predicated on this issue. In the motion for new trial, Defendant argued that "prior to the trial of this matter defendant's family hired a private attorney to represent him in this matter," and that the court "made it clear that it had no intention" of continuing the established May 15, 2017 trial date. Defendant argued that he had an absolute right to engage an attorney of his choice to represent him and "because the court would not entertain a continuance in this matter to allow the privately hired attorney to represent defendant the court prevented the defendant from choosing his own representation," and as a result, he was entitled to a new trial. Defendant also argued that the verdict was contrary to the law and evidence and alternatively, moved for a new trial because the ends of justice would be served by the granting of a new trial.
At the hearing on the motion for new trial, the trial court denied the motion, reasoning:
[T]he insufficiency of the evidence and motion for New Trial, as well as, an argument that Mr. Hicks was denied right to the Counsel. I don't think there is any question that Mr. Benz was involved in this case for an extend period of time....At no point prior to immediately preceding to trial did Mr. Regan ever enter this court room and say that he wanted to be Mr. Hicks' attorney. He was offered the right to do so. The Court simply made him aware of the currently scheduled trial and informed him that the trial was not going to be continued because of a last minute change of attorneys. He had every right to represent Mr. Hicks.
The Court would not have opposed him representing Mr. Hicks. So should he choose to represent Mr. Hicks, he [was] allowed to do so. However, he did not. He did not appear at trial or represent Mr. Hicks and at no time did the Court tell him he couldn't. The Court simply made him aware that there was a presently schedule trial and he would be expected to comply with that trial schedule, given the length of the time the case had been set for that trial date, given the number of continuances, given how long the case had been lingering, certainly Mr. Hicks was entitled to his day *1037in court. He had been waiting in jail long enough for that day. I think it was appropriate to go forward on that day.
The State notes the grounds upon which a motion for a new trial may be based, citing La. C.Cr.P. art. 851.
Both the federal and state constitutions provide that a criminal defendant has the right to counsel of his own choosing to defend him. State v. Leggett ,
It is further well-established that a defendant in a criminal trial cannot, by a last minute change of counsel, force a postponement. State v. Williams , 00-1850 (La. App. 5 Cir. 4/11/01),
Moreover, a motion for a new trial is based on the supposition that injustice has been done to the defendant, and unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. La. C.Cr.P. art. 851. The trial court's ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Delagardelle , 06-898 (La. App. 5 Cir. 4/11/07),
Considering the facts and circumstances of this matter, we find that the trial court did not abuse its discretion in denying Defendant's motion for new trial alleging he was denied counsel of his choice. The record reflects that no defense counsel moved for a continuance on the day of trial, as a continuance was not specifically sought either at the May 1, 2017 hearing or in the proceeding weeks leading up to trial. Two weeks prior to the scheduled trial date, Mr. Regan, who was not the attorney of record, only indicated that he might enroll, but had conflicting matters on the scheduled date of trial that he indicated he may have been able to reschedule. The record reflects that Mr. Regan did not file a motion to enroll in this case nor did he file a motion to continue. Defendant's argument presumes that Mr. Regan would have enrolled in the case but for the granting of the continuance; however, the record does not indicate why Mr. Regan did not ultimately enroll in this case. The record further reflects that Mr. Benz, who was the attorney of record, did not file a motion to continue or a motion to withdraw. (See State v. Nickles , 46,189 (La. App. 2 Cir. 4/13/11),
Further, while Defendant argues he was denied the right to proceed to trial with counsel of his choosing, he does not indicate how the denial prejudiced him. Mr. Benz, Defendant's attorney for most of the criminal proceedings, represented him at trial, and there is no assertion that Mr. Benz was unprepared for trial. Based on the forgoing, we find that the trial court did not abuse its discretion in denying Defendant's motion for new trial.
Errors Patent Discussion
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux ,
DECREE
For the foregoing reasons, Defendant's convictions and sentences are affirmed.
AFFIRMED
Co-defendant Ernest L. Payne, Jr. has appealed his convictions and sentences under companion case number 17-KA-553.
The victims were Delanta McCall and Martin Henry.
The indictment was amended on April 11, 2013, to add Ernest L. Payne Jr. to the second degree murder charge in count two.
Co-defendant Payne was found guilty of the responsive verdicts of manslaughter on each of the two counts.
Defendant's assignments of error are interrelated and will be address in one analysis.
La. C.Cr.P. art. 707 provides:
A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Nevertheless, there is a jurisprudential exception to the requirement for a written motion where the circumstances producing the motion occur unexpectedly and there is no opportunity to prepare the motion. (See State v. Bartley , 03-1382 (La. App. 5 Cir. 3/30/04),
See also Uniform Rules, Court of Appeal, Rule 1-3, which provides in pertinent part that "[t]he Courts of Appeal will review only issues which were submitted to the trial court[.]"
Insofar as the trial court's inclination to not grant a continuance could be construed as a denial of Defendant's motion to continue, according to La. C.Cr.P. art. 712, "[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor." The Louisiana Supreme Court has consistently held that the decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Davenport , 08-463 (La. App. 5 Cir. 11/25/08),
La. C.Cr.P. art. 851 provides:
A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(1) The verdict is contrary to the law and the evidence.
(2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment.
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.
(6) The defendant is a victim of human trafficking or trafficking of children for sexual purposes and the acts for which the defendant was convicted were committed by the defendant as a direct result of being a victim of the trafficking activity.