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Date: 08-25-2020
Case Style:
STATE OF LOUISIANA Vs. NYTILEX JONES
Case Number: 2019-KA-0440
Judge: Joy Cossich Lobrano
Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
Plaintiff's Attorney: Leon Cannizzaro
District Attorney
Donna Andrieu
Irena Zajickova
DISTRICT ATTORNEY’S OFFICE
Defendant's Attorney:
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Call 888-853-4800 if you need a Criminal Defense Attorney in LOUISIANA.
Description:
Defendant was charged with the July 27, 2013 second-degree murder of
Samuel Kelly (“Victim”), a violation of La. R.S. 14:30.1. Defendant appeared for
arraignment and entered a plea of not guilty. Defendant filed a motion to suppress
evidence, statement, and identification the same day. After Defendant fired and
obtained new counsel on numerous occasions, the State requested a mental
competency evaluation and hearing. At the hearing on June 18, 2015, Defendant
was represented by counsel from the New Orleans Office of Public Defenders
(“OPD”). Because Defendant had been uncooperative during the evaluation, the
court ordered another competency evaluation. At the second competency hearing
4
on August 13, 2015, during which Defendant was represented, the district court
accepted the sanity commission’s recommendation and found Defendant
competent to proceed to trial. On April 25, 2016, Defendant filed a pro se motion
for a change of venue.
The district court subsequently denied Defendant’s motions for a change of
venue, as well as previously filed motions to suppress evidence, identification, and
statement. On September 26, 2016, Defendant filed a motion to recuse the district
judge and the case was transferred from Section “C” to Section “K.” On May 3,
2017, Defendant filed a motion to exclude the video surveillance evidence.
Following a hearing to determine authenticity and reliability, the motion was
denied on September 29, 2017.
On November 21, 2017, Defendant moved for another mental competency
evaluation and hearing. On November 28, 2017, defense counsel filed a motion to
withdraw after Defendant again refused to accept assistance from appointed
counsel. Defense counsel also filed motions for a psychiatric exam and to present
basis for competency hearing. The district court granted the motion to withdraw
and entered a finding on the record that defendant had voluntarily waived his right
to assistance of counsel. The court then proceeded with the third hearing on the
renewed competency motion at which Defendant was unrepresented. Defendant’s
privately retained expert testified and recommended that another sanity
5
commission be appointed.
1
The district court accepted the expert’s
recommendation and ordered another competency evaluation. The district court
held a competency hearing on December 19, 2017, and again found Defendant
competent to proceed to trial. Defendant was unrepresented at this hearing.
Defendant proceeded to trial on June 5, 2018, pro se, but the district court
declared a mistrial following opening statements during which Defendant
demanded an attorney and agreed to accept the assistance of appointed counsel. On
September 18, 2018, the morning of Defendant’s second trial, the court denied a
renewed motion for a competency evaluation and began jury selection.2
Following
a three-day trial during which Defendant was represented by counsel, the jury
returned a unanimous verdict of guilty as charged. On October 9, 2018, Defendant
filed motions for a new trial, post-verdict judgment of acquittal, arrest of judgment,
and downward departure from the mandatory sentence, all of which were denied.
On October 11, 2018, the district court sentenced Defendant to the
mandatory sentence of life imprisonment at hard labor without the benefit of
parole, probation, or suspension of sentence over Defendant’s objection.
ERRORS PATENT
A review of the record reveals no errors patent.
1 Dr. Sarah DeLand believed Defendant suffered from paranoid delusions that would affect his
ability to assist his attorney, specifically, that the surveillance video was reconstructed and the
entire criminal justice system was rigged against him.
2 Defense counsel unsuccessfully moved for reconsideration of the competency issue at every
subsequent proceeding, bench conferences or discussions in chambers.
6
ASSIGNMENTS OF ERROR
Defendant has assigned the six errors for our review. However, finding that
the district court erred in allowing Defendant to represent himself during his final
competency hearing, we pretermit discussion of the remaining assignments.
DISCUSSION
Defendant contends that reversal of his conviction is required because
he was denied counsel at his final competency hearing at which the court
erroneously found him competent to proceed to trial.
The State responds that the district court had already found Defendant
competent to proceed to trial following two competency hearings at which
Defendant was represented by appointed counsel, therefore, the failure to have
counsel at any subsequent competency hearing would be harmless error.
Defendant was afforded four competency hearings.3
The first, requested by
the State, was held on June 18, 2015, at which Defendant was represented by OPD.
Defendant was examined by Drs. Richard Richoux and Raphael Salcedo. Dr.
Richoux testified that he could not complete the examination because Defendant
was deliberately uncooperative. Dr. Richoux recommended that Defendant be
remanded to a mental facility where he could be continuously observed to provide
a more thorough evaluation.4
3
The first two hearings occurred while Defendant’s case was pending in Section “C” and the
second two were conducted after the case was transferred to Section “K.”
4 Dr. Richoux also testified that Defendant stated he diagnosed himself as a paranoid
schizophrenic, although he neither had been professionally diagnosed nor sought treatment for
the condition (or any other mental condition). Dr. Salcedo concurred with Dr. Richoux’s
assessment and recommendation.
7
The court rejected the recommendation.
5 Defendant then questioned the
authenticity of the video surveillance footage the State had provided in discovery
and moved for its suppression. The court explained that his concerns could not be
addressed until his competency was determined. Defendant insisted he was
competent and submitted to the court a written pro se motion to suppress the
footage. The court ordered a second mental evaluation and competency hearing.
On July 9, 2015, Defendant appeared for his second competency hearing
without counsel. The court continued the hearing until he obtained new counsel.
On August 13, 2015, Defendant appeared for the second competency
hearing represented by counsel. Dr. Richoux testified that Defendant was
cooperative during the examination. Defendant denied any history of psychiatric
treatment and denied that he suffered “from any symptoms of possible mental
illness.” Dr. Richoux did not observe manifestation of any psychotic symptoms.
Defendant presented nothing to suggest he was incapable of assisting his attorneys
with his defense, or that he was unable to testify on his own behalf or make wellinformed decisions. Dr. Richoux testified that Defendant satisfied the Bennett6
criteria and that he was competent to stand trial.
5
The district court explained that it was familiar with Defendant and believed that he was
intelligent and simply malingering.
6
In State v. Bennett, 345 So.2d 1129, 1138 (La. 1977), the Supreme Court set forth factors to
consider when determining if an accused's ability to assist in his defense.
Facts to consider in determining an accused's ability to assist in his defense
include: whether he is able to recall and relate facts pertaining to his actions and
whereabouts at certain times; whether he is able to assist counsel in locating and
examining relevant witnesses; whether he is able to maintain a consistent defense;
whether he is able to listen to the testimony of witnesses and inform his lawyer of
any distortions or misstatements; whether he has the ability to make simple
decisions in response to well-explained alternatives; whether, if necessary to
defense strategy, he is capable of testifying in his own defense; and to what
extent, if any, his mental condition is apt to deteriorate under the stress of trial.
8
On cross-examination, Dr. Richoux explained that deliberate obstination and
disrespect of authority may be symptomatic of a personality disorder, but did not
determine competency to stand trial. Moreover, Dr. Richoux found nothing to
support a diagnosis of a personality disorder, although he admitted that he had not
consulted with any of Defendant’s previous attorneys during his evaluation.7
The court found Defendant competent to proceed, but cautioned him to stop
firing his appointed attorneys or he would have to represent himself at trial;
Defendant indicated that he understood the court’s ultimatum. On September 26,
2016, the morning of trial, Defendant filed a motion to recuse the judge, which the
court granted over the State’s objection. Accordingly, the case was transferred
from Section “C” to Section “K.”
On November 21, 2017, Defendant demanded that the court remove his
current counsel of record and refused any further representation by OPD. The court
denied Defendant’s motion and informed counsel that either he or someone from
OPD, should prepare to represent Defendant at trial. The court set a hearing to
determine counsel and competency for November 28, 2017.
On November 28, 2017, Defendant again stated he wanted no further
representation by a public defender. After extensive questioning,
8
the district court
found that Defendant had voluntarily waived his right to have a lawyer represent
him.
Following that exchange, the court granted OPD’s motion to withdraw as
counsel and proceeded with the third competency hearing. The court called Dr.
7 Dr. Salcedo concurred with Dr. Richoux’s assessment and recommendation.
8 During the questioning, Defendant stated that he had never represented himself in a criminal
case and had a sixth-grade education with difficulty in understanding and reading.
9
DeLand to the stand and conducted the direct examination. Dr. DeLand testified
that she had conducted a mental examination of Defendant at the request of his
former counsel. She spoke with several of Defendant’s prior attorneys, Defendant,
his mother, and two sisters. Dr. DeLand believed Defendant suffered from
paranoid delusions that would affect his ability to assist his attorney, specifically
that the surveillance video was reconstructed, and that the entire criminal justice
system was rigged against him.9
Furthermore, she did not think that Defendant’s
assertion that court officials had conspired to suppress the real surveillance video
was “a reasonable and consistent defense strategy,” and therefore concluded that
Defendant was incapable of representing himself. Dr. DeLand recommended that
yet another competency hearing be held.
Defendant’s fourth competency hearing took place on December 19, 2017,
at which he was again unrepresented. After another mental evaluation by Drs.
Richoux and Salcedo, Dr. Richoux indicated that Defendant had refused
representation by OPD during the evaluation and at the hearing. Dr. Richoux
testified that Defendant refused to participate in the evaluation and gave no verbal
response to any questions posed. Nevertheless, Dr. Richoux reviewed his reports
from previous evaluations, spoke to one of Defendant’s former attorneys who
relayed the concerns regarding the surveillance footage, and reviewed Dr.
DeLand’s report. He testified that Defendant’s assertions regarding the video
footage “taken at face value could be viewed as delusional,” but may also be
subject to alternative interpretations, specifically “a purposeful attempt to delay the
9 Dr. DeLand testified that she was aware of the possibility that Defendant was malingering,
however, she found it more likely that he suffered from a legitimate mental illness based on his
receipt of a disability check since childhood, and his sisters’ account that “there are some other
family members also with mental illness.” She also testified that Defendant told her he heard
voices and that he received personal messages through the television.
10
legal proceedings,” or simply “a massive form of denial,” that may present as
delusion. Accordingly, Dr. Richoux was not convinced that Defendant suffered
from any identifiable mental illness and recommended that Defendant be found
competent to proceed. Defendant refused to participate in the hearing or reply to
the court’s questions. The court found Defendant competent and denied all
subsequent counseled defense motions to revisit the issue.
In order to decide this issue, we first look to the Louisiana Code of Criminal
Procedure that includes a subsection (Title XXI) dedicated to insanity proceedings.
To determine a defendant's mental incapacity, we apply La. C.Cr.P. arts.
641, 642, 643, and 647. Pursuant to La. C.Cr.P. art. 641, “[m]ental incapacity to
proceed exists when, as a result of mental disease or defect, a defendant presently
lacks the capacity to understand the proceedings against him or to assist in his
defense.” As a general matter, La. C.Cr.P art. 642 allows “[t]he defendant's mental
incapacity to proceed may be raised at any time by the defense, the district
attorney, or the court.” The Article mandates that “[w]hen the question of the
defendant's mental incapacity to proceed is raised, there shall be no further steps in
the criminal prosecution ... until the defendant is found to have the mental capacity
to proceed.” Id. (Emphasis added.)
Next, Article 643 provides:
The court shall order a mental examination of the defendant
when it has reasonable ground to doubt the defendant's mental
capacity to proceed. Prior to the ordering of any such mental
examination, the court shall appoint counsel to represent the
defendant if he has not already retained counsel. (Emphasis
added.)
Lastly, if a defendant's mental incapacity has been properly raised, the
proceedings must continue under La. C.Cr.P. art. 647, which states:
11
The issue of the defendant's mental capacity to proceed shall be
determined by the court in a contradictory hearing. The report of the
sanity commission is admissible in evidence at the hearing, and
members of the sanity commission may be called as witnesses by the
court, the defense, or the district attorney. Regardless of who calls
them as witnesses, the members of the commission are subject to
cross-examination by the defense, by the district attorney, and by the
court. Other evidence pertaining to the defendant's mental capacity to
proceed may be introduced at the hearing by the defense and by the
district attorney. (Emphasis added.)
Pursuant to Article 643, prior to ordering a mental examination of a
defendant, the district court must appoint counsel to represent him/her. This is
buttressed by Article 647, which requires a contradictory hearing during which the
defense is entitled to question any witness testifying on the issue of a defendant’s
competency.
The proper legal standard for determining whether a criminal
defendant is competent to stand trial was set forth in State v. Carmouche, 01-
0405, pp. 29-30 (La. 5/14/02), 872 So.2d 1020, 1041 (subsequent history
omitted):
A criminal defendant has a constitutional right not to be tried
while legally incompetent. Medina v. California, 505 U.S. 437, 449,
112 S.Ct. 2572, 2579, 120 L.Ed.2d 353, 365-66 (1992)....A state
must observe procedures adequate to protect a defendant's right not
to be tried while incompetent, and its failure to do so deprives the
defendant of his due process right to a fair trial. Id.... In his dissent in
Medina, Justice Blackmun expressed his opinion that due process
does not simply forbid the state to try to convict a person who is
incompetent, but it also “demands adequate anticipatory, protective
procedures to minimize the risk that an incompetent person will be
convicted.” Medina, 505 U.S. at 458, 112 S.Ct. at 2584, 120 L.Ed.2d
at 371 (1992) (Blackmun, J. dissenting) (emphasis in original); see
also State v. Martin, 00-0489, p. 1 (La. 9/22/00), 769 So.2d 1168,
1169 (per curiam); State v. Nomey, 613 So.2d 157, 161 (La. 1993).
Louisiana’s statutory scheme for determining whether a defendant is
mentally competent to stand trial jealously guards the defendant’s right to a fair
trial. State v. Anderson, 06-2987, p. 20 (La. 9/9/08), 996 So.2d 973, 992 (citing
12
State v. Nomey, 613 So.2d 157, 161 (La. 1993)). Where a bona fide question is
raised regarding a defendant’s capacity, the failure to observe procedures to protect
a defendant’s right not to be tried or convicted while incompetent to stand trial
deprives him of his due process right to a fair trial. State ex rel. Seals v. State, 00-
2738, p. 6 (La. 10/25/02), 831 So.2d 828, 833 (citation omitted).
The Sixth Amendment requires the relinquishment of the right to counsel to
be voluntary, knowing, and intelligent. It has long been held that if a defendant’s
competency is questioned, a defendant is unable to waive his right to counsel until
deemed competent. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 838 (1966);
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1025 (1938) (a criminal
defendant may not be tried unless he is competent and he may not waive his right
to counsel or plead guilty unless he does so competently and intelligently).10
The district court understood this at the June 18, 2015 competency hearing.
Following an order that another competency evaluation and hearing take place,
Defendant questioned the authenticity of the video surveillance footage provided in
discovery and moved for its suppression. The court explained that his concerns
10 Several federal courts of appeals have held that a defendant may not waive the right to
representation of counsel during competency proceedings. United States v. Frazier-El, 204 F.3d
553, 559 (4th Cir. 2000) (“The Supreme Court has made clear that the standard of competence
for waiving counsel is identical to the standard of competence for standing trial. See Godinez,
509 U.S. at 396–97, 113 S.Ct. 2680. Therefore, the district court's refusal to permit Frazier–El to
represent himself until the issue of competency was determined was clearly justified.”); United
States v. Ross, 703 F.3d 856, 871 (6th Cir. 2012) (“[T]he Constitution requires a defendant to be
represented by counsel at his own competency hearing, even if he has previously made a
knowing and voluntary waiver of counsel.”); United States v. Klat, 156 F.3d 1258, 1263
(D.C.Cir.1998) (“[W]here a defendant’s competence to stand trial is reasonably in question, a
court may not allow that defendant to waive her right to counsel and proceed pro se until the
issue of competency has been resolved.”); United States v. Purnett, 910 F.2d 51, 55 (2d
Cir.1990) (“[T]he trial court cannot simultaneously question a defendant’s mental competence to
stand trial and at one and the same time be convinced that the defendant has knowingly and
intelligently waived his right to counsel.”); United States v. Kowalczyk, 805 F.3d 847, 858 (9th
Cir. 2015) (“[A]s a person whose competence to stand trial was in question, Kowalczyk could
not legally waive his right to counsel; thus he was entitled to be represented by an attorney at his
competency hearing.)
13
could not be addressed until his competency was determined. On July 9, 2015,
Defendant appeared for his second competency hearing without counsel. The
district court continued the hearing until Defendant was appointed new counsel.
A district court’s failure to follow statutory provisions in determining
defendant’s mental capacity to proceed violates a defendant’s due process rights.
State v. Cretian, 17-0777, p. 9 (La.App. 4 Cir. 1/24/18), 238 So.3d 473, 478. It is
well-established that “[t]he failure to observe procedures adequate to protect a
defendant’s right not to be tried or convicted while incompetent to stand trial
deprives him of his due process right to a fair trial.” State v. Nomey, 613 So.2d
157, 161 (La. 1993); Cretian, 17-0777, p. 9, 238 So.3d at 478.
We find that Defendant could not waive his right to counsel before his
December 19, 2017, competency hearing. In other words, any waiver of counsel by
Defendant before his fourth contradictory competency hearing was invalid.
In State ex rel. Seals v. State, 00-2738, p. 6 (La.10/25/02), 831 So.2d 828,
833, the Supreme Court noted that where the district court failed to resolve the
issue of a defendant’s competency, nullification of the conviction and sentence
may be appropriate, citing Nomey, 613 So.2d at 161-62. On the other hand, “[i]n
certain instances, a nunc pro tunc hearing on the issue of competency is
appropriate if a meaningful inquiry into the defendant’s competency may still be
had.” Id. (citing State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832, opinion
after remand, 98-1078 (La. 4/14/04), 874 So.2d 739, cert, granted, judgment
vacated on other grounds, Synder v. Louisiana, 545 U.S. 1137, 125 S.Ct. 2956,
162 L.Ed.2d 884 (2002)). “A ‘meaningful’ determination is possible ‘where the
state of the record, together with such additional evidence as may be relevant and
available, permits an accurate assessment of the defendant's condition at the time
14
of the original ... proceedings.’” State v. Camper, 08-0314, p. 17, n. 7 (La.App. 4
Cir. 10/1/08), 996 So.2d 571, 583 (quoting Snyder, 98-1078, p. 31, 750 So.2d at
855.) “If a retrospective determination cannot be made, or if it is determined that
defendant was not competent at the time of trial, the defendant shall be entitled to a
new trial.” Id. Due to the violation of Defendant’s constitutional right to counsel,
we find remand inappropriate.
The United States Supreme Court has consistently held there should be a
new trial if there has been some constitutional defect regarding the defendant’s
competency. See, e.g., Drope v. Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 43
L.Ed.2d 103 (1975) (granting a new trial when trial court refused to conduct a
hearing to determine the defendant's competence to stand trial); Pate, 383 U.S. at
386-87, 86 S.Ct. 836 (ordering a new trial for a defendant who did not receive an
adequate competency hearing); Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct.
788, 4 L.Ed.2d 824 (1960) (per curiam) (vacating the conviction after holding that
there were insufficient facts to support the finding that petitioner was competent to
stand trial and recognizing the “difficulties of retrospectively determining the
petitioner's competency as of more than a year ago.”).
The right to assistance of counsel is “one of the safeguards of the Sixth
Amendment deemed necessary to insure fundamental human rights of life and
liberty.” Johnson, supra, 304 U.S. at 462, 58 S.Ct. 1019. “The right to counsel in
our adversarial system is sacrosanct.” State v. Haider, 00-0231, p. 8 (La.App. 3
Cir. 10/11/00), 772 So.2d 189, 194. Similar to Haider, this Defendant’s total lack
of representation at his competency hearing violated his right to counsel. Id. That
the district court previously found Defendant competent, with counsel present, is of
no moment given that the court re-opened competency proceedings after hearing
15
Dr. DeLand’s testimony. Under these circumstances, the violation of Defendant’s
right to counsel requires us to vacate his conviction and sentence and remand the
case for a new trial.
Outcome: For the reasons set forth above, we vacate Defendant’ conviction and
sentence and the matter is remanded to the district court for a new trial.
Plaintiff's Experts:
Defendant's Experts:
Comments: