FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 489-688,
SECTION "I" Honorable Karen K. Herman, Judge
A. Cannizzaro, Jr. DISTRICT ATTORNEY Scott G. Vincent
ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR
APPELLEE/STATE OF LOUISIANA.
Michael S. Fawer SMITH & FAWER COUNSEL FOR
composed of Judge Rosemary Ledet, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew Woods).
Rosemary Ledet Judge.
the second appeal by the defendant, Avery Young, in this
criminal case, involving a charge of second degree
kidnapping. On Mr. Young's first appeal, this court
conditionally affirmed his guilty plea to that charge,
vacated his sentence, and remanded for an evidentiary hearing
on the motion to withdraw his guilty plea. State v.
Young, 11-0046 (La.App. 4 Cir. 8/17/11), 71 So.3d 565
("Young I "). On remand, the
district court, following an evidentiary hearing, denied the
motion to withdraw Mr. Young's guilty plea and
resentenced him. From that ruling, Mr. Young filed this
second appeal. For the reasons that follow, we affirm in part
and remand for resentencing to correct an error patent.
OF THE CASE
August 25, 2009, the State charged Mr. Young with second
degree kidnapping, a violation of La. R.S. 14:44.1 (count
one). On September 1, 2009, Mr. Young was arraigned and
entered a plea of not guilty to that charge. Before trial,
both sides filed various motions, including a motion to
introduce evidence of an earlier offense filed by the State.
Granting in part and denying in part the State's motion,
the district court, on October 28, 2009, ruled as follows:
[T]he State may adduce evidence of the earlier offense
involving [L.B.], but with certain limitations: no mention is
to be made of the gun used by Mr. Young in that matter, nor
is anything which may have occurred between [L.B.] and Mr.
Young prior to December 11, 2007 . . . be elicited. Indeed,
[L.B.] is to be instructed by the State to only testify to
the facts of Mr. Young's restraining her at his apartment
against her will and his efforts to pacify her during that
restraint by administering intoxicants.
12, 2010, a motions hearing was held. On that same date, the
State amended the bill of information to add a charge of
forcible rape, a violation of La. R.S. 14:42.1 (count two),
and to change the wording and date of the occurrence. Mr.
Young entered a plea of not guilty to the amended bill of
jury trial in this case lasted three days. On the first day
(July 12, 2010), voir dire was conducted and a jury was
selected. On the second day (July 13, 2010), both sides gave
opening statements and the State called three witnesses- the
victim, R.C.; the sexual assault nurse examiner
("SANE"), Jeanne Dumestre; and a detective with the
New Orleans Police Department ("NOPD") sex crimes
unit, Detective Corey Lymous. On the third day (July 14,
2010), Mr. Young pleaded guilty to second-degree kidnapping;
and the State dismissed, pursuant to a negotiated plea
agreement with the State, the forcible rape charge.
sentencing, Mr. Young enrolled new counsel. On August 20,
2010, Mr. Young filed a motion for a sanity hearing, which
the district court granted. On August 26, 2010, following a
sanity hearing, the district court found Mr. Young competent
to proceed. On that same date, Mr. Young filed a motion to
withdraw his guilty plea and requested an evidentiary hearing
on that motion. He also filed a motion to continue
sentencing. The district court denied those motions and
sentenced Mr. Young, in accord with the plea agreement,
serve fifteen years at hard labor with credit for time served
and concurrent with his parole revocation sentence in Section
"C" of Orleans Parish Criminal District Court (Case
Number 475-798) (the "Section 'C Case"),
without benefit of parole, probation, or suspension of
sentence for the first two years. On August 30, 2010, the
district court denied Mr. Young's motion to reconsider
prior appeal, Mr. Young argued, among other things, that the
district court erred by denying the motion to withdraw his
guilty plea without an evidentiary hearing. Finding merit to
this argument, this court affirmed Mr. Young's
conviction, vacated his sentence, and remanded for an
evidentiary hearing on the motion to withdraw his guilty
plea. Young I, supra.
remand, Mr. Young, represented by new counsel, filed a motion
to quash the indictment. On October 25, 2013, following a
hearing, the district court denied the motion to quash. At
that time, the evidentiary hearing on the motion to withdraw
Mr. Young's guilty plea was set for December 2013.
August 25, 2015, Mr. Young filed a motion to recuse the
district court judge (Honorable Karen Herman) on the basis
that the judge could be a witness at the hearing on the
motion to withdraw his guilty plea. The motion was
transferred to another division for hearing. On November 4,
2015, following a recusal hearing, the motion was granted.
This court denied the State's writ application. State
v. Young, 15-1305 (La.App. 4 Cir. 1/20/16)
(unpub.). The Louisiana Supreme Court, however,
granted the State's writ application, stating that
"[t]he recusal of Judge Herman is reversed. The hearing
on the motion to withdraw the guilty plea shall proceed with
Judge Herman presiding." State v. Young,
16-0300 (La. 4/8/16), 191 So.3d 579.
January 13, 2017, the district court, following a two-day
evidentiary hearing, denied the motion and re-imposed the
original sentence of fifteen years at hard labor. This appeal
OF THE FACTS
facts regarding the offense to which Mr. Young pled guilty
are set forth in detail in Young I. Briefly stated,
Mr. Young pled guilty to the second degree kidnapping of his
girlfriend, R.C., whom he held captive in his house after
they argued. Because the issue on this appeal relates
solely to the motion to withdraw Mr. Young's guilty plea,
we focus on the facts developed at the evidentiary hearing on
remand on the motion to withdraw.
noted, the evidentiary hearing was held over a two-day
period. On the first day, Mr. Young called the following six
witnesses: (i) Mark Nermyr, a criminal defense attorney from
Arizona and Mr. Young's friend; (ii) Christian Recile, an
NOPD officer and Mr. Young's friend; (iii) Veronica
Young, Mr. Young's mother; (iv) Jeffrey Smith, Mr.
Young's co-counsel at trial; (v) Dr. Richard Richoux, who
was qualified as an expert in the field of general
psychiatry; and (vi) Mr. Young. On the second day, the State
called one witness-Dr. Sarah Deland, who was qualified as an
expert in the field of general psychiatry.
provide a background for analyzing the issue presented on
appeal, we summarize the evidence presented at the
evidentiary hearing. For ease of discussion, we divide the
summary into the following three parts: timeline of the case;
experts' testimony; and lay witnesses' testimony.
of the case
after Mr. Young's arrest, his parents retained Mr. Smith
to represent their son. Mr. Smith argued all of the pre-trial
motions. As the district court pointed out at the hearing,
Mr. Smith alone represented Mr. Young from August 2009, when
the bill of information was filed, until about five months
before his trial, when a motion to associate Robert Glass as
co-counsel was filed.
January 2010, Mr. Young's father retained Mr. Glass to
represent his son. On February 1, 2010, Mr. Smith filed a
motion to enroll Mr. Glass as associated counsel, which the
district court granted. According to Mr. Young, Mr. Glass then
became lead counsel, and Mr. Smith remained on the case as
"second chair." When Mr. Glass was hired to
represent Mr. Young, he was suffering from Parkinson's
disease; Mr. Glass did not disclose this fact to
his client, to Mr. Young; Mr. Young's parents; or to
co-counsel, Mr. Smith.
the jury trial commenced, Mr. Young was represented by a team
of two experienced attorneys-Mr. Glass and Mr.
Smith. Before the trial, his attorneys divided
the trial tasks between themselves. As planned, on the first
day of the trial, Mr. Smith handled the voir dire. As
planned, on the morning of the second day of trial, Mr. Glass
made the opening statement and cross-examined the victim,
R.C., one of the State's key witnesses, whose testimony
was extensive and lasted until the lunch break. After the
victim's testimony, the trial was recessed for lunch.
Young testified that during the lunch break, he and Mr. Glass
were left alone in the courtroom. At that point, Mr. Young
confronted Mr. Glass with the question of whether Mr. Glass
had Parkinson's disease. Mr. Glass responded affirmatively
that he had Parkinson's disease. According to Mr. Young,
Mr. Glass added that his doctor had told him that he was not
"too far along, yet" and that he did have to take
medication. Mr. Young further testified that Mr. Glass then
asked him whether his performance had been "that
bad." Continuing, Mr. Young testified that, shortly
thereafter, Mr. Glass leaned back in his chair and went to
sleep in the courtroom during the lunch break.
trial resumed that afternoon, Mr. Smith, as planned, handled
the cross-examination of NOPD Detective Lymous. The
State's final witness for the day was the SANE
nurse. As apparently planned, Mr. Glass handled
the testimony of the SANE nurse. During the direct
examination of the State's SANE nurse, Mr. Glass voiced
several hearsay objections, several of which the district
court sustained. Mr. Glass then cross-examined the SANE
trial was over for the day, Mr. Young spoke with his parents,
who had been sequestered (and thus not in the courtroom). Mr.
Young informed his parents of his views regarding Mr.
Glass' performance that day and that Mr. Glass had
acknowledged that he had Parkinson's disease; his parents
were unaware of this fact. Mr. Young also told his
parents he would arrange to call them that evening.
that evening, Mr. Smith spoke with Mr. Glass and met with Mr.
Young's parents; Mr. Smith did not recall speaking with
Mr. Young on the telephone that evening. Mr. Young, in
contrast, testified that Mr. Smith was present that night
when he telephoned his parents and that he spoke with Mr.
Smith that night. Mr. Young testified that his mother told
him in the phone conversation-and Mr. Smith later confirmed
it on the phone-that Mr. Smith had spoken to Mr. Glass, that
Mr. Glass had acknowledged that he could not continue, and
that Mr. Glass was backing out and transferring the case to
Mr. Smith. On that evening, Mr. Young testified, no decision
had been reached as to how matters would proceed the next
third day of trial (July 14, 2010), no testimony was taken
because there was an electrical power outage in the
courthouse building that morning. As the district court judge
noted on the record, she allowed the defense attorneys (Mr.
Glass and Mr. Smith) and Mr. Young to use her chambers to
meet in private to discuss a plea agreement. The three of
them discussed the plea agreement at length that morning. Mr.
Smith testified that Mr. Glass played a pivotal role in the
plea agreement discussion. Mr. Smith further testified that
this was not the first time a plea agreement had been
discussed in this case. Mr. Young testified that Mr. Smith
informed him that the trial judge had informed the defense
that she would impose a fifty-year sentence if he was
convicted. Mr. Young further testified that given Mr.
Glass' health issues, coupled with what had happened in
court on the prior day, he felt compelled to accept the plea
agreement offered by the State. Mr. Smith acknowledged that
he and Mr. Glass encouraged Mr. Young to accept the plea
agreement. Mr. Smith, however, explained that they did so
because of the strength of the State's evidence against
Mr. Young, not because of Mr. Glass' performance.
the trial, neither the attorneys nor Mr. Young advised the
district court judge that Mr. Glass was suffering any
symptoms from Parkinson's disease. Nor was a motion for
mistrial or a motion to continue the trial filed on that
basis. A few days after he was sentenced, however, Mr. Young
retained new counsel, who filed the motion to withdraw Mr.
Young's guilty plea based, in part, on Mr. Glass'
testimony at the evidentiary hearing focused on Mr.
Glass' competency, especially the effect, if any, of Mr.
Glass' symptoms from Parkinson's disease on his
performance at the trial. Although Mr. Glass was not called
as a witness at the evidentiary hearing and his medical
records were not offered in evidence, it was stipulated, as
noted elsewhere, that Mr. Glass was diagnosed with
Parkinson's disease before February 1, 2010. At the
evidentiary hearing, each side called an expert to opine on
whether Mr. Glass was suffering from any cognitive impairment
as a result of the Parkinson's disease. The experts
voiced totally divergent opinions on this issue.
Young's expert, Dr. Richoux, testified about
Parkinson's disease in general. Dr. Richoux testified
that, in the earliest stages of Parkinson's disease, 30
to 40 percent of Parkinson's sufferers will suffer
cognitive impairment and that, "in advanced stages of
Parkinson's [d]isease, probably 80 percent of
Parkinson's sufferers will show an identifiable
neuro[-]cognitive result." Dr. Richoux explained that
the cognitive impairment that accompanies Parkinson's
disease is documented in both the Diagnostic and Statistical
Manual of Mental Disorders (the "DSM") and the
literature in general. Indeed, he noted that the current DSM,
DSM V, has a section entitled "Neuro[-]Cognitive
Disorders Due to Parkinson's Disease."
Richoux further explained that a Parkinson's sufferer
will have problems primarily in the following two domains
(areas of brain function): (i) complex attention, and (ii)
executive functioning skills. He noted, based on his
experience in court testifying regularly as an expert, that
these areas of brain function are important skills for a
defense attorney. Complex attention, he explained, means the
ability to attend to what is going on, to retain it for some
time, and to formulate thoughts about it. Executive
functioning skills, he explained, primarily involve
"on-the-spot" decision making. A problem in this
area is reflected by a tendency to defer to others in terms
of making important decisions. He stated that
"Parkinson's suffers will have a tendency to abandon
complex tasks." Indeed, he stated the DSM gives this as
an example. Dr. Richoux, however, testified that
"it's important to understand, not every single
person who has a diagnosis of Parkinson's [d]isease, has
the same degree of neuro[-]cognitive impairment in
accompaniment with it."
Richoux acknowledged that he had no awareness of when Mr.
Glass was diagnosed with Parkinson's disease and that he
was not given access to Mr. Glass' medical records. Dr.
Richoux further acknowledged that he had neither examined Mr.
Glass nor attended the trial in this case. Dr. Richoux still
further acknowledged that he had never observed Mr. Glass in
a courtroom setting and thus could not make a comparison
based on what the other lay witnesses at the evidentiary
hearing described occurred at the trial in this case. Dr.
Richoux explained that his expert opinion regarding Mr. Glass
was based solely on "background knowledge about
generalities concerning Parkinson's disease, and
specifically, neuro[-] cognitive impairment associated with
it. And then trying to parlay that with what [he] heard in
the form of testimony from witnesses [at the evidentiary
his opinion, Dr. Richoux testified that "if I operate on
the assumption that what I heard is accurate, in that regard,
[Mr. Glass] could certainly correlate quite closely with,
again, one of the classic examples given in the DSM in the
area of impairment of Executive Functioning, when it talks
about abandoning complex tasks." He further testified
that "[t]o a reasonable degree of medical certainty,
based on what I'm hearing, there was some degree of
cognitive impairment on the part of Mr. Glass." Finally,
he opined that this impacted on Mr. Glass' conducting of
the defense. Although Dr. Richoux opined that Mr. Glass had
some degree of neuro-cognitive impairment, he could not
State's expert witness, Dr. DeLand, similarly testified
about Parkinson's disease in general, noting that the
disease includes motor impairment and cognitive issues. Dr.
DeLand testified that in the early stages of Parkinson's
disease, it is common for some people not to suffer from
cognitive impairment, yet to have motor impairment. She
further opined that a ...