FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST.
MARTIN, NO. 12-243406 HONORABLE CURTIS SIGUR, DISTRICT JUDGE
M. Ikerd COUNSEL FOR DEFENDANT/APPELLANT: Darrin Duhon
Landry Attorney General Marty L. White Andrea Barient
Assistant Attorneys General COUNSEL FOR APPELLEE: State of
composed of Sylvia R. Cooks, Billy Howard Ezell, and Van H.
defendant, Darrin Kash Duhon,  pled guilty to one count of
manslaughter, a violation of La.R.S. 14:31, and two counts of
attempted manslaughter, violations of La.R.S. 14:27 and
La.R.S. 14:31. He was sentenced by the trial court to forty
years at hard labor on the manslaughter conviction and eight
years at hard labor on each count of attempted manslaughter,
with the two eight year sentences to run concurrently with
each other, but consecutively to the forty-year sentence. The
defendant appeals his sentences. For the following reasons,
OF THE RECORD
facts presented at the guilty plea proceeding reveal that the
defendant and his wife lived in Breaux Bridge, Louisiana,
next door to his wife's grandmother, Mildred Hebert, and
her aunt and uncle, Emmaline and Charlie Thibodeaux. On the
morning of September 1, 2012, Mrs. Hebert and Mrs. Thibodeaux
were in the kitchen while Mr. Thibodeaux was working in the
yard. The defendant entered the home, retrieved a 9mm handgun
from a closet, shot Mrs. Hebert twice, and shot Mrs.
Thibodeaux multiple times. As Mr. Thibodeaux entered the
home, the defendant also shot him. After shooting his
victims, the defendant called 911 and then returned to his
home and collected his nine-year-old son, who he drove to his
brother's job site and dropped off.
the defendant drove onto I-10 from the Breaux Bridge exit and
began following a vehicle driven by Allison Spikes until she
exited onto Ambassador Caffery Parkway in Lafayette. When Ms.
Spikes pulled into the parking lot of the Ambassador Caffery
Inn, the defendant parked next to her and attempted to
carjack her car. He fled the scene when Ms. Spikes locked her
door and contacted the Lafayette Police Department on her
cell phone. He was later apprehended by the Abbeville Police
Department following a high-speed chase, after which he was
turned over to the St. Martin Parish Sheriffs Office.
defendant was originally charged by bill of information with
three counts of attempted first degree murder. Upon the death
of one of the victims, the state dismissed one of the
attempted first degree murder charges, and a grand jury
indicted the defendant on one count of first degree murder.
Both charging instruments were filed under the same docket
number. The defendant initially entered a plea of not guilty
and not guilty by reason of insanity to the three counts of
attempted first degree murder and filed a motion to form a
sanity commission to determine his sanity both at the present
and at the time of the offenses. However, after the grand
jury indictment on the charge of first degree murder, the
defendant withdrew his motion for a sanity commission. The
defendant entered a plea of not guilty to the charge of first
degree murder, but later changed his plea to not guilty and
not guilty by reason of insanity. Thereafter, a joint motion
for a sanity commission was filed by the state and the
defendant. The defendant later entered a guilty plea to one
count of manslaughter and two counts of attempted
manslaughter pursuant to a plea agreement and was sentenced
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed for errors patent on the face of the record. After
reviewing the record, we find there is one error patent
concerning the withdrawal of the request for the appointment
of a sanity commission.
Code of Criminal Procedure Article 642 states:
The defendant's mental incapacity to proceed may be
raised at any time by the defense, the district attorney, or
the court. When the question of the defendant's mental
incapacity to proceed is raised, there shall be no further
steps in the criminal prosecution, except the institution of
prosecution, until the defendant is found to have the mental
capacity to proceed.
January 22, 2013, defense counsel filed a pleading entitled
"Motion to Form Sanity Commission" in which he
requested the appointment of a sanity commission to examine
the mental condition of the defendant both at the present
time as well as at the time of the offenses. The motion
indicated that the request was based on a defense
investigator's observation that the defendant showed
characteristics of having a mental disorder. The trial court
set the matter for hearing on February 7, 2013. The court
minutes and the transcript from that day indicate that
defense counsel withdrew the motion prior to the trial
court's ruling thereon and that the defendant was not
present in court for the hearing. In requesting to withdraw
the motion, defense counsel stated:
Your Honor, the Public Defender's Office represents Mr.
Duhon. It is set today for a Motion for Your Honor, that
motion was filed a while back when Mr. Duhon was originally
arrested for three (3) counts of attempted murder. One of the
alleged victims subsequently died and he got indicted this
past week for first degree murder. So in light of that, we
are going to withdraw the motion at this time because it is a
whole new ball game with the new charge. I believe that
matter is going to be set for an arraignment later this month
and we will determine if and when we will re-file the Sanity
Commission at that time.
appointment of a sanity commission is only required when the
trial court finds that there are reasonable grounds to doubt
the mental capacity of a defendant to proceed to trial.
La.Code Crim.P. art. 643. In State v. Normand, 04-
840, pp. 3-4 (La.App. 3 Cir. 12/15/04), 896 So.2d 98, 100,
writ denied, 05-231 (La. 5/6/05), 901 So.2d 1094,
this court stated as follows:
The appointment of a sanity commission "is not a
perfunctory matter or a ministerial duty of the trial court
nor is it guaranteed to every accused in every case."
State v. Nix, 327 So.2d 301, 323 (La.1975);
State v. Sepulvado, 93-2692 (La.4/8/96), 672 So.2d
158. The burden of proof lies with the defendant. The
defendant must show "by a clear preponderance of the
evidence reasonable grounds for the trial judge to believe he
is mentally deficient." State v. Cyriak,
96-661, p. 8 (La.App. 3 Cir. 11/6/96), 684 So.2d 42, 47.
Moreover, "[t]he fact that the defendant's capacity
to proceed is called into question does not, for that reason
alone, require the trial court to order a mental examination
of the defendant." **4 State v. Lott, 574 So.2d
417, 424 La.App. 2 Cir.), writ denied, 580 So.2d 666
(La. 1991), affirmed after remand, 27, 849 (La.App.
2 Cir. 4/3/96), 671 So.2d 1182. The trial court has great
discretion in ruling on a determination of competency, and
its decision will not be overturned on appeal absent an abuse
of discretion. State v. Comeaux, 514 So.2d 84 (La.
1987); State v. Lowenfield, 495 So.2d 1245
that the trial court erred in failing to specifically rule on
the defendant's January 22, 2013 motion to appoint a
sanity commission contesting the defendant's capacity to
proceed before allowing counsel to withdraw the motion.
State v. Tyler, 11-1123 (La.App. 3 Cir. 5/9/12), 89
So.3d 510, writ denied, 12-1314 (La. 11/30/12), 103
So.3d 364, the defendant claimed on appeal that the trial
court erred in allowing defense counsel to withdraw a motion
to appoint a sanity commission as it was a prohibited step in
furtherance of the prosecution. The trial court had signed an
order appointing a sanity commission, but the defendant had
not yet been examined. Although the contradictory hearing on
the motion was scheduled, the motion to request a sanity
commission was withdrawn by defense counsel. This court found
merit to the defendant's claim, stating:
Louisiana Code of Criminal Procedure Article 643 requires the
trial court order a mental examination of Defendant when it
has reasonable ground to doubt Defendant's mental
capacity to proceed. Louisiana Code of Criminal Procedure
Article 644 requires the court appoint a sanity commission to
examine and report on the mental condition of Defendant
within seven days after a mental examination is ordered. The
examination was ordered in the present case, indicating the
trial court found reasonable ground to doubt Defendant's
capacity to proceed. See State v. Strain, 42, 809
(La.App. 2 Cir. 12/5/07), 972 So.2d 1184, and State v.
Nomey, 613 So.2d 157 (La. 1993). Withdrawal of a motion
to appoint a sanity commission has been found to be a further
step in the prosecution which improperly removes the ultimate
decision of competency from the trial court. State v.
Carney, 25, 518 (La.App. 2 Cir. 10/13/95), 663 So.2d
470, Strain, 972 So.2d 1184, State v.
Darnell, 43, 048 (La.App. 2 Or. 8/13/08), 988 So.2d 870.
Thus, we find allowing the case to move forward in the
absence of a determination that Defendant had the capacity to
proceed was legal error.
Id. at 513-14.
the facts in Tyler, the trial court here had not yet
appointed a sanity commission, and thus had not yet ruled on
whether the defendant had presented reasonable grounds to
doubt his mental capacity to proceed. It is further noted
that the basis for the initial motion for a sanity commission
was a broad, non-specific assertion that the defendant showed
"characteristics of having a mental disorder[, ]"
which were observed by defense counsel's investigator.
Accordingly, the question becomes whether the trial court
should have determined whether the defendant was competent to
proceed or whether his request for the sanity commission was
without merit, rather than simply permitting defense counsel
to withdraw the motion outside of the presence of the
State v. Carney, 25, 518, pp. 4-5 (La.App. 2 Cir.
10/13/95), 663 So.2d 470, the court, in addressing the trial
court's role relative to issues of a defendant's
capacity to proceed, stated the following:
"Due process and our statutory law require that the
issue of the defendant's mental capacity to proceed shall
be determined by the court." [State v.]
Rogers, [419 So.2d 840');">419 So.2d 840, 843 (La. 1982)]. "This
cardinal principle . . . prohibits [the court] from
committing the ultimate decision of competency to a physician
or anyone else." Id. Furthermore, the above
articles, when read in pari materia, implicitly require the
trial court to rule on the defendant's motion and
determine whether a "reasonable ground to doubt the
defendant's mental capacity" exists before
proceeding further in the prosecution. Withdrawing a motion
to appoint a sanity commission is a further step in the
prosecution. Also, permitting such a motion to be withdrawn
takes the ultimate decision of competency away from the
court. Thus, although a mental examination may not be
required in every case where the issue of mental capacity is
raised, State v. Wilkerson,403 So.2d 652 (La.